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. 1. 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. (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 1. The Court must also consider matters at s 12 of the Trees Act before making any orders. 12 Matters to be considered by Court Before determining an application made under this Part, the Court is to consider the following matters: (a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises, (b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained, (b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act, (b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree, (b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated, (c) whether the tree has any historical, cultural, social or scientific value, (d) any contribution of the tree to the local ecosystem and biodiversity, (e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned, (f) the intrinsic value of the tree to public amenity, (g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned, (h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property: (i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage, (i) if the applicant alleges that the tree concerned is likely to cause injury to any person: (i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury, (j) such other matters as the Court considers relevant in the circumstances of the case.