Ednie v Melman [2019] NSWLEC 1594

Land and Environment Court New South Wales

Medium Neutral Citation: Ednie v Melman [2019] NSWLEC 1594 Hearing dates: 22 November 2019; 3 December 2019 Date of orders: 03 December 2019 Decision date: 03 December 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The orders made at the onsite hearing on 22 November 2019 are set aside. (2) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – zoning of land – Rural Landscape zone – the tree is on land to which the Trees Act does not apply – orders made at the onsite hearing set aside – the application is refused Legislation Cited: Lake Macquarie Local Environmental Plan 2014 Standard Instrument—Principal Local Environmental Plan Trees (Disputes Between Neighbours Act) 2006 (NSW) Uniform Civil Procedure Rules 2005 Category: Principal judgment Parties: Lesley Ednie (Applicant) Anthony Melman (First Respondent) Mina Melman (Second Respondent) Representation: Lesley Ednie (Litigant in person) (Applicant) Anthony Melman (Litigant in person) (Respondents) File Number(s): 2019/267967 Publication restriction: No

Judgment

The application 1. Lesley Ednie ('the applicant') has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act') seeking orders for the removal of a tree on adjoining land in Mandalong belonging to Mina Melman and Anthony Melman ('the respondents').

Onsite hearing 1. At the onsite hearing on 22 November 2019, I observed the tree and surrounds, heard submissions from Ms Ednie and Mr Melman, and gave an extemporaneous decision. The tree, a tall Spotted Gum, leans towards sheds on Ms Ednie's property containing chickens, and towards her driveway. There are signs that roots have lifted or broken on one side of the tree, and the angle of lean has increased recently. Failure of the whole tree is likely in the foreseeable future. Such failure would result in damage to Ms Ednie's property. The tree should be removed. As is usual in such proceedings, the tree owner would bear the cost of tree removal unless there is some reason to order otherwise. I made the following orders at the onsite hearing: 1. The application is granted. 2. Within 60 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove the tree to no more than one metre above ground level. These works must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. 3. The respondents are to give the applicant two days' notice of the works. 4. The applicant is to allow any access required to complete the works ordered above during reasonable hours of the day. 5. Prior to the works commencing, the respondents are to provide the applicant with a copy of the arborist's public liability insurance certificate.