Beanland v Van Gervan

[2008] NSWLEC 33

Land and Environment Court

of New South Wales

CITATION:

Beanland v Van Gervan [2008] NSWLEC 33

PARTIES:

APPLICANT
Jim Beanland

RESPONDENT
Mr S. and Mrs S. Van Gervan

FILE NUMBER(S):

21139 of 2007

CORAM:

Fakes AC

KEY ISSUES:

Trees (Neighbours) - Neighbour Application :- Removal of tree, damage to property and injury to persons

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

23/01/2008

EX TEMPORE JUDGMENT DATE:

23 January 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Beanland, litigant in person

RESPONDENT
Mr S. and Mrs S. Van Gervan, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

23 January 2008

21139 of 2007 Jim Beanland v Mr S. and Mrs S. Van Gervan

JUDGMENT

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Jim Beanland of 168 Linden Crescent East Boambee concerning a Eucalyptus microcorys (Tallowwood) located on a property owned by Mr and Mrs Van Gervan at 41 Ibis Drive East Boambee.

2 The tree is wholly located within the respondents’ property and is located at the rear of their property approximately 3.5 metres from the boundary fence between them and Mr Beanland.

3 The applicant seeks the removal of the tree as he is concerned that branches falling from the tree will continue to cause damage to his property or could cause injury to himself or visitors. He is also concerned that the entire tree could fail onto his property, particularly an outdoor living area under an extensive patio at the rear of his property. He is most concerned when winds blow from the north as he is to the south of the tree. Mr Beanland supplied photographic evidence of dead and live branches that had fallen from the tree. In a storm in September 2007 a branch landed on his patio roof. This branch was left there as evidence and was viewed at the on site hearing.

4 The respondents do not want the tree removed as they contend that it was one on the reasons they bought the property two years ago. They say that it shades the house and is frequently used by birds. They also see no danger in the tree for themselves or their children. They said that the prevailing strong winds tend to come from the south and therefore blow the tree away from Mr Beanland’s property; they pointed out that the habit of the tree reinforces this.

5 Mr Beanland has lived at his current address for eight years. His property is a “battle axe” block and his side boundary adjoins the rear boundaries of several properties in Ibis Drive. When he moved in there were more trees on neighbouring properties as well as his own. He stated that he removed a large tree from his property to avoid problems to his neighbour and managed to get some of the owners of properties in Ibis Drive to remove trees that might affect him. The previous owner of 41 Ibis Drive had several, apparently overhanging, branches lopped off the Tallowwood in question. These branches are on the south side of the tree and closest to Mr Beanland’s property.

6 The Van Garvans bought their property two years ago and were unaware of Mr Beanland’s concerns about the tree until approximately March 2007.

7 The tree was inspected from both properties and binoculars were used to view the upper parts of the canopy. The tree is a mature Tallowwood approximately 25 m high. It is in average condition. It has healthy foliage but some dead wood at the top of the canopy and at the extremities. This is consistent with a tree of this age that has had its environment disturbed through building works. The immediate area around the base of the tree was level and there were no signs of heaving or soil cracking that would suggest the likelihood of whole tree failure in the near future. The tree is likely to be a remnant of the original vegetation. There is a bush reserve at the back of Ibis Drive and at the rear of Mr Beanland’s property, probably some 50 m from the tree.

8 The pruning that the previous owner of 41 Ibis Drive had carried out is best described as lopping. Large stubs were left which resulted in the production of multiple epicormic shoots from the ends of these stubs. These shoots are now woody and several metres long. It appears from the photographic evidence and from the branch left on the roof that the failed branches are highly likely to be epicormic in origin.

9 Under s 10(2) of the Act, the Court must be satisfied that the tree has caused, is causing, or could, in the near future, cause damage to property or injury to persons.

10 Under s 12 of the Act the following clauses are considered relevant to this matter. Under clause (d), the tree does make a contribution to the local ecosystem and to biodiversity as it is highly likely to be a remnant of the original forest. It is a koala food species in an area inhabited by koalas but neither the respondents nor the applicant have seen koalas in this tree. It does add to the scenic value of the land on which it sits (clause (e)) and it has some intrinsic value to public amenity by virtue of its size, location and proximity to the nearby bushland (clause (f)).

11 Returning to s 10(2), I am satisfied that falling branches from this tree have caused damage to the applicant’s property and could continue to do so. It is also possible that falling branches may cause injury however, there is no clear evidence to suggest that the entire tree is likely to fail. As the damage appears to have been caused by epicormic shoots as a result of previous lopping, I am not convinced that the tree should be removed but rather that certain branches be removed.

12 Therefore the application to remove the tree is refused but the Court makes the following orders for pruning.

13 The three branches on the south side of the tree that were lopped by the previous owner of 41 Ibis Drive are to be removed to the branch collar at the trunk of the tree. The two lowest of these branches have many epicormic shoots at the end of the stubs. The third branch is above these, is larger and originates at approximately 12 m above the ground near a vertical dead stub. These branches were clearly identified and pointed out to both parties at the on-site hearing.

14 In addition to the three live branches detailed above, all dead wood down to 40 mm in diameter and within 5 m of the boundary between the applicant’s and the respondents’ properties is to be removed.

15 This work is to be carried out by an AQF level 3 Arborist with the appropriate insurances. All work is to be in accordance with AS4373:2007 and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

16 This work is to be carried out within 90 days of the date of these orders and is to be paid for by the respondents.

___________________

J Fakes
Acting Commissioner of the Court
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