Land and Environment Court New South Wales Medium Neutral Citation: Milwain v Schofield [2016] NSWLEC 1468 Hearing dates: 7 October 2016 Date of orders: 07 October 2016 Decision date: 07 October 2016 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS]: Potential damage and or injury; insufficient evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Barry Milwain (Applicant) Timothy Schofield (Respondent) Representation: Applicant: Mr B Milwain (Litigant in person) Respondent: Mr C Schofield (Agent) File Number(s): 174655 of 2016 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: Mr Milwain, the applicant, is concerned that should either of two mature Broad-leaved Paperbarks growing at the rear of the respondent's property break during a storm, they could fall on his house and cause damage to it or injury to anyone inside it at the time. 2. Mr Milwain has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the pruning of the trees to a height which would prevent any snapped sections from reaching his dwelling. 3. During the on-site hearing, Mr Milwain confirmed that he is not seeking the removal of the trees and nor is he concerned about them blowing out of the ground as he accepts both trees are well-anchored. 4. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states: (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. This must be applied at all trees the subject of an application. 2. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…". 3. As Mr Milwain is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing. 4. While the respondent, Mr Schofield, obtained a brief written statement from an arborist attesting to the health of the trees, little weight can be given to it as it does not meet any of the requirements specified in the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005. 5. The following observations are based on the arboricultural expertise I bring to the Court. I inspected the trees from the parties' properties; binoculars were used to view the upper parts of the canopies. 6. Both trees are mature specimens of Melaleuca quinquenervia (Broad-leaved Paperbark). It is not clear as to whether they have been planted or are remnants, as this species would naturally occur in in the low-lying parts of Long Jetty. 7. I agree with the respondent's arborist that both trees are healthy. No part of either tree directly overhangs Mr Milwain's property. 8. When asked, Mr Milwain stated that there had been two severe storms in the past 18 months or so and apart from small branches and debris nothing substantial had fallen from either tree. He also stated that storms tend to come from the west. 9. Tree 1 is the closest tree to the north of Mr Milwain's dwelling. It appears that some overhanging branches have been pruned from it in the past. I saw no signs of any limb failures or any evidence of any defects likely to predispose the tree to mechanical failure in the near or foreseeable future. 10. Tree 2, to the northwest of the dwelling and some distance from it, comprises multiple trunks, some of which have included bark between them. While this is a structural defect which may predispose a trunk to fail, I saw no signs to suggest that any such failure was likely or imminent in the near or foreseeable future. 11. Given the statement that the storms principally come from the west, the potentially weaker stems on Tree 2 are likely to be protected from winds from that direction by other structurally sound parts of the tree and by other trees and buildings. Similarly, Tree 1 is also protected by other vegetation on Mr Schofield's property. 12. Having considered the evidence, while there is a theoretical possibility of branch failure, there is no evidence that this is likely to be realised in the near or foreseeable future. Therefore there is insufficient evidence to satisfy any element of s 10(2) and as a consequence, the Orders of the Court must be that: 1. The application is dismissed. ____________________________ Judy Fakes Acting Commissioner of the Court ********** 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. Decision last updated: 10 October 2016