Mildred v Steinhauer; Lee v Steinhauer [2023] NSWLEC 1165

Mildred v Steinhauer; Lee v Steinhauer [2023] NSWLEC 1165

The Applicants made reasonable efforts to reach agreement, the tree was on adjoining land, and the evidence, including the arborist's reports and onsite observations, established that the tree was significantly compromised by borer damage, fungal issues and vine infestation, was continuing to shed dead and live branches, and was likely within the near future to cause injury and property damage. The jurisdictional threshold in s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 was therefore satisfied, and removal at the Respondent's cost was the most practical risk mitigation measure. Compensation was refused because the evidence did not sufficiently identify roots or establish an...

Jurisdiction
Australia
Judgment Date
11 April 2023
Procedural Posture
Class 2 Application Under Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment on Two Applications Heard Together After Remitter of Mr Mildred's Matter and Commencement of Mr Lee's Separate Application
Outcome
Applications for compensation refused; applications to remove the tree granted in both proceedings.
Legal Topics
['removal of Tree on Adjoining Land' 'compensation for Alleged Tree Damage' 'risk of Injury From Falling Branches' 'sewer Pipe Root Damage' 'trees (disputes Between Neighbours) Act 2006 Ss 7, 9, 10 and 12']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings' 'property Damage and Injury Risk'] ['removal of Tree on Adjoining Land' 'compensation for Alleged Tree Damage' 'risk of Injury From Falling Branches' 'sewer Pipe Root Damage' 'trees (disputes Between Neighbours) Act 2006 Ss 7, 9, 10 and 12']

Case Brief

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Procedural Posture

Class 2 Application Under Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment on Two Applications Heard Together After Remitter of Mr Mildred's Matter and Commencement of Mr Lee's Separate Application

Legal Issues

  1. 1 ["Whether the Eucalyptus microcorys on the Respondent's land has caused, is causing, or is likely in the near future to cause damage to the Applicants' properties." 'Whether the tree is likely to cause injury to any person.' 'Whether removal of the tree is an appropriate order under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the Respondent should pay for removal of the tree.' 'Whether compensation should be ordered for alleged sewer, roof, skylight, pruning and maintenance expenses.']

Ratio Decidendi

The Applicants made reasonable efforts to reach agreement, the tree was on adjoining land, and the evidence, including the arborist's reports and onsite observations, established that the tree was significantly compromised by borer damage, fungal issues and vine infestation, was continuing to shed dead and live branches, and was likely within the near future to cause injury and property damage. The jurisdictional threshold in s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 was therefore satisfied, and removal at the Respondent's cost was the most practical risk mitigation measure. Compensation was refused because the evidence did not sufficiently identify roots or establish an...

Court Disposition

Applications for compensation refused; applications to remove the tree granted in both proceedings.

Orders

  • ['Proceedings 2021/249664: The application for compensation is refused.' 'Proceedings 2021/249664: The application to remove the tree is granted.' 'Proceedings 2021/249664: The Respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to...