Milwain v Schofield

Land and Environment Court New South Wales Medium Neutral Citation: Milwain v Schofield [2016] NSWLEC 1468 Hearing dates:7 October 2016Date of orders: 07 October 2016 Decision date: 07 October 2016 Jurisdiction:Class 2Before: 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 judgmentParties: Barry Milwain (Applicant) Timothy Schofield (Respondent) Representation: Applicant: Mr B Milwain (Litigant in person) Respondent: Mr C Schofield (Agent) File Number(s):174655 of 2016JudgmentThis decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 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. 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. 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. In applications under Part 2, the key jurisdictional...