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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWLEC 33
Decision Date: 23 January 2008

CaseChat Overview and Summary

Jim Beanland, the applicant, brought an application under the Trees (Disputes Between Neighbours) Act 2006, seeking the removal of a Tallowwood tree located on the property of Mr and Mrs Van Gervan, the respondents. The tree is situated within the respondents' property, approximately 3.5 metres from the boundary fence between their property and the applicant's. The applicant raised concerns about the tree, citing potential damage to his property and the risk of injury from falling branches, particularly when winds blow from the north. The respondents opposed the removal, stating that the tree was one of the reasons they purchased the property and that they saw no danger posed by the tree. They also noted that the prevailing strong winds tend to blow the tree away from the applicant's property.

The primary legal issue before the court was whether the tree in question had caused, was causing, or could, in the near future, cause damage to property or injury to persons, as required under section 10(2) of the Act. Additionally, the court considered the contributions of the tree to the local ecosystem and biodiversity, its scenic value, and its intrinsic value to public amenity. The court also had to balance these considerations against the applicant's concerns regarding damage to his property and potential injury from falling branches.

The court found that the tree had caused damage to the applicant's property through falling branches and that there was a possibility of future damage and injury. However, the court was not convinced that the entire tree should be removed. Instead, the court ordered the removal of specific branches, including those that had been previously lopped by the previous owner of the respondents' property, as well as all dead wood within 5 metres of the boundary. The work was to be carried out by a qualified arborist in accordance with industry standards and codes of practice. The respondents were ordered to pay for the work, which had to be completed within 90 days of the judgment.

The court's orders were that the three branches on the south side of the tree, which had been lopped by the previous owner of 41 Ibis Drive, were to be removed to the branch collar at the trunk of the tree. Additionally, all dead wood down to 40 mm in diameter and within 5 m of the boundary between the applicant's and the respondents' properties was to be removed. The work was to be carried out by an AQF level 3 Arborist with the appropriate insurances and in accordance with AS4373:2007 and the WorkCover NSW Code of Practice for the Amenity Tree Industry. The work was to be completed within 90 days of the date of these orders and was to be paid for by the respondents.

Orders