Land and Environment Court of New South Wales CITATION : Macey v Jephcott & Anor [2007] NSWLEC 728 APPLICANT John Macey PARTIES : RESPONDENT Mr Grant Jephcott and Mrs April Jephcott FILE NUMBER(S) : 20615 of 2007 CORAM: Thyer AC KEY ISSUES: Trees (Neighbours) :- removal dead branches, removal of all trees threatening safety and property, annual removal of overhanging pine cones LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 29/10/2007 EX TEMPORE JUDGMENT DATE : 29 October 2007 APPLICANT Mr J. Macey, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr A. Williams, solicitor of Stacks the Law Firm JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 29 October 2007 20615 of 2007 Macey v Jephcott & Anor JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 Acting Commissioner: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning 8 trees (the trees) situated along the northern boundary of 21 Kings Road, Moss Vale (the property). The property is owned by Mr and Mrs Jephcott. 2 The trees are Radiata pines (Pinus radiata). 3 The application has been made by Mr Macey, owner of 5 Kewarra Place, Moss Vale, the adjoining property to the north of the trees. 4 The application seeks orders from the Court for removal of dead branches overhanging Mr Macey's house, removal of all trees threatening safety and property, and an annual removal of overhanging pine cones. 5 The relevant provisions of s 10(2) of the Act require that the Court be satisfied that one or more of four conditions are met, with respect to each tree subject of an application, before the Court has jurisdiction to consider the application concerning that tree. 6 These tests are: Has the tree caused damage to the applicant's property? Is the tree now causing damage to the applicant's property? Is the tree likely in the near future to cause damage to the applicant's property? Is the tree likely to cause injury to any person? 7 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? 8 I have been assisted in my assessment of the trees by an arborist's report prepared by "Above All Arbor", and attendance at the hearing by Mr Griffiths the author of that report. 9 I have examined the trees and have reached the following conclusions with respect to them. The trees are radiata pines of some 100 years of age, approximately 25 to 30 m in height, in varying conditions of health and structural integrity. The trees are growing in a line along the northern boundary of 21 Kings Road. 10 I have adopted the tree numbering system used in the arborist's report, Tree 1 being the most easterly tree, Tree 2 being the next in a westerly direction, and so on. 11 For Trees 1 – 7 the trunks at ground level are situated fully within the property, whereas the trunk of Tree 8 is situated on the boundary and extending into 5 Kewarra Place. Some branches of each of the trees extend over 5 Kewarra Place. 12 The parties agree that Tree 1 is generally healthy and structurally sound, sufficiently distant from Mr Macey's house that it does not present a problem to him, and that it is sheltered by nearby trees other than the Trees 2 - 8. 13 Mr Macy has advised during the hearing that he no longer seeks intervention with Tree 1 at the present time. 14 Mr Macey holds that Tree 2 has dropped pine cones that have broken 25 – 30 tiles on the roof since the Maceys moved into their house at Christmas 2003. I observed broken tiles that Mr Macey has replaced from his roof. On this basis I am satisfied that Tree 2 has caused damage to Mr Macey's property. 15 I am not satisfied that removal of the lower branches of Tree 2 overhanging Mr Macey's property will be effective to stop further damage to the roof tiles by falling pine cones from the remaining higher branches. 16 The arborist's report noted, and I observed that some of the trees 3 – 8 have structural problems which may lead to branch or trunk failure, and damage to property in the future, or may possibly cause injury to a person. 17 I am concerned that removal of branches or whole trees as recommended in the arborist's report is likely to expose the remaining trees to different wind forces, possibly causing those remaining trees to fail. 18 I am aware that Pinus radiata hedgerows are a common landscape element in the Southern Highlands, and contribute to its particular character. 19 I am also aware that Wingecarribee Shire Council have listed Pinus radiata as an environmental weed allowing its removal except where listed as a heritage item in the WLEP 1989. I am advised that Pinus radiata are not protected on the property. 20 I am concerned that many of the old Pinus radiata hedgerows such as these trees may be removed, and that in time most of these heritage and landscape elements may be lost. 21 However, I do recognise the problems that arise when urban development is permitted close to such trees, and that the trees may need to be managed or removed in such circumstances. 22 I note the efforts of the parties to agree on management of the trees in the recent past, and appreciate the assistance of Mr Williams, solicitor for the Jephcotts in formulating an agreement between the parties. 23 I am pleased that during this hearing the parties have come to an agreement addressing all matters of contention to them regarding the trees, and have signed that agreement. 24 I note that having reached that agreement, Mr Macey no longer wishes the Court to determine the matter or to make orders for intervention with the trees. 25 I therefore dismiss this matter, noting the main points of the agreement between the parties: o Tree 1 shall remain; o Trees 2 - 8 shall be removed; o Trees 3, 4 and 7 shall be removed at the Jephcott's cost; o Trees 2, 5, 6 and 8 shall be removed at equal cost to the Jephcotts and Mr Macey; o The total cost of tree removal to Mr Macey shall be $7,755.00. o Mr Macey shall pay the $7,755.00 to the arborist within 7 days of being given a receipt for the completed work. o The work shall be completed by 31 December 2007, weather permitting. o The arborist shall be given access to carry out that part of the work that must be done on Mr Macey's property. The access shall be on reasonable notice at a reasonable time, and Mr Macey is entitled to supervise that access. o Timber and debris from the tree removal shall not be removed through Mr Macey's property. o The work shall be carried out by an arborist agreed to by both parties, who holds AQF Level 3 qualifications or equivalent, and suitable insurances. ___________________ Peter Thyer Acting Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.