Webb v Milton

[2024] NSWLEC 1851

Land and Environment Court

New South Wales

Medium Neutral Citation:

Webb v Milton [2024] NSWLEC 1851

Hearing dates:

5 August 2024

Date of orders:

5 August 2024

Decision date:

05 August 2024

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) The respondents, at their expense, shall contract Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances (the arborists) to remove the Jacaranda branch leaning on the fence.

(2) The arborists or the respondents shall grind or excavate the Bougainvillea stump to entirely clear it from the boundary line.

(3) The works in Orders 1 and 2 shall be completed within 45 days of the date of these orders.

(4) The respondents shall employ a fencing contractor with appropriate insurances, to repair the fence so it is vertical and rigid and forms a straight line on the boundary. The fencing works shall be completed within 60 days of the date of these orders.

(5) All tree work shall comply with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016, and shall be completed during reasonable daytime working hours.

(6) The applicant shall provide access for completion of works and removal of debris, subject to 72 hours emailed notice from the respondents.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – trees damaging common boundary fence –– minor s 12 considerations only – orders made

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Pt 2: ss 7, 8, 9, 10, 12

Cases Cited:

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

Texts Cited:

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

Category:

Principal judgment

Parties:

Bruce Charles Webb (Applicant)
Edward Milton (First Respondent)
Gail Milton (Second Respondent)

Representation:

B Webb (Self-represented) (Applicant)
E Milton (Self-represented) (First Respondent)
G Milton (Self-represented) (Second Respondent)

File Number(s):

2024/191639

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: Bruce Charles Webb, the applicant, and Edward and Gail Milton, the respondents, share a rear boundary between their neighbouring properties in Blackalls Park, near Lake Macquarie. The common boundary was oriented north, north-west to south, south-east and was delineated by a timber paling fence. The parties’ land sloped downhill from the respondents’ street frontage at an angle of about 12 degrees and both properties were leased to tenants.

2. At the rear of the respondents’ land was a garage or large shed, the back wall of which was parallel to the common boundary and about 800mm distant. A mid-size Jacaranda tree, the subject of the application, was growing about halfway along the narrow space between the shed’s back wall and the common boundary. The canopy of the Jacaranda tree arched over both the applicant’s back yard and the shed, and one low mid-size branch was contacting the boundary fence.

3. The residual stump of a large Bougainvillea vine was growing across the boundary near the north, north-western…