Wheeler v McDonald

[2007] NSWLEC 383

Land and Environment Court

of New South Wales

CITATION:

Wheeler v McDonald [2007] NSWLEC 383

PARTIES:

APPLICANT
Shaun Wheeler

RESPONDENT
Geoff McDonald

FILE NUMBER(S):

20181 of 2007

CORAM:

Hussey C - Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Potential damage to property, injury to persons and overhanging branches.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

18/06/2007

EX TEMPORE JUDGMENT DATE:

18 June 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. Wheeler, litigant in person

RESPONDENT
Mr G. McDonald, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C
Thyer AC

18 June 2007

20181 of 2007 Shaun Wheeler v Geoff McDonald

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

Background

1 This is an application pursuant to s 7 of the Trees (Dispute Between Neighbours) Act 2006 concerning a tree located on a property at 28 First Avenue, Erowal Bay. The property is owned by Mr McDonald and the tree is a mature Spotted Gum.

2 The application has been made by Mr S. Wheeler from No. 30 First Avenue, who seeks orders from the Court firstly; that the branches that are overhanging the common boundary of the shed be pruned to stop dropping branch damage to the shed and possible injury to persons. Secondly, rectification be undertaken to the fence alignment occasioned by tree movement.

3 The relevant provisions of s 10(2)(a) of the Act require the Court to be satisfied that one or more of the following four conditions are met with respect to any trees subject to the application, before the Court has jurisdiction to consider the application concerning the tree. The tests are:

1. Has the tree caused damage to the applicant’s property?

2. Is the tree now causing damage to the applicant’s property?

3. Is the tree likely in the near future to cause damage to the applicant’s property?

4. Is the tree likely to cause injury to any person?

4 Only if one or more of these tests are satisfied can the Court move to consider the discretionary question of:

• Is the damage or risk sufficiently serious to warrant the Court intervening?.
• If so what should the Court order?
• Who should pay the cost for carrying out these orders?

The Evidence.

5 We have examined this Spotted Gum tree and are satisfied it is in good condition. Whilst there is some dead wood, this appears to be quite normal for a tree of its maturity in this context and the risk of dropping live branches appears to be low. Apart from this, there is a possibility that some dead wood will occur, but any potential dropping does not seem to impose any unreasonable level of risk under normal circumstances, in our assessment.

6 Consistent with the tree dispute principles set out by the Court in Barker v Kyriakides [2007] NSWLEC 292, we are satisfied that it is not appropriate to order the removal or in this case the significant interference with the tree on the basis of its dropping of leaves, twigs and the like on the applicant’s property.

7 However, we note that there is a lower branch that overhangs the shed, with a visible scar and section of reactive wood that does warrant some pruning to avoid possible damage. We consider that this pruning can be reasonably undertaken in accordance with Mr McDonald’s stated program to remove the tree within 12 months. Notwithstanding this, we consider it reasonable to make an order that this branch be pruned in any case, within a period of 12 months.

8 In respect to the compensation, we see that there are 3 - 4 fencing panels that have been displaced from the common boundary alignment in the vicinity of the tree. But we are unable to directly attribute this to the tree, in the absence in any visible root contact with the fence. From the evidence of the owners, it appears that the fence was misaligned prior to their ownership of the property and we do not consider that the tree is likely to further cause the fence to shift in the near future.

9 Importantly, we note that the property owners agreed to re-align the fence and under these circumstances we consider that it would be reasonable to allow this realignment to be undertaken in conjunction with the proposed tree removal, within 12 months as this will probably be more cost effective. We do not consider it reasonable or necessary to make orders in respect of the fence.

10 There was another concern raised by Mr Wheeler about possible root damage to the garage floor, but we understand that piers were constructed to accommodate any tree root growth in that area. As we were not shown any damage to the slab, we do not consider that root damage from this tree is likely to cause significant damage within the near future. For these reasons then, we make the following orders.

1. The overhanging branch of the Spotted Gum shown in Attachment ‘A’ be pruned near the fork at point AB (refer Attachment ‘B’), within a period of 12 months. Also, the dead wood overhanging No. 30 First Avenue be removed within the 12 months period

___________________ ___________________

R Hussey P Thyer
Commissioner of the Court Acting Commissioner of the Court

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