Bentley v Hinchen

[2008] NSWLEC 1348

Land and Environment Court

of New South Wales

CITATION:	Bentley v Hinchen [2008] NSWLEC 1348
PARTIES:	APPLICANT Carol Bentley RESPONDENTS David and Lynette Hinchen
FILE NUMBER(S):	20585 of 2008
CORAM:	Moore C - Taylor C - Fakes AC
KEY ISSUES:	Trees (Neighbours) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	15 August 2008
EX TEMPORE JUDGMENT DATE:	15 August 2008
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENTS In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
TAYLOR C
FAKES AC

15 August 2008

08/20585 Carol Bentley v David and Lynette Hinchen

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

1 COMMISSIONERS : A large Flooded Gum ( eucalyptus grandis ) grows on 9B Gladstone Parade, Lindfield, very close to its eastern boundary with 2 Drovers Way. Ms Bentley is the owner of 2 Drovers Way. She has made an application pursuant to the Trees (Disputes Between Neighbours) Act 2006 seeking removal of the tree and compensation for damage as has been occasioned to her roof and to a retaining wall on her property, adjacent to the base of the tree.

2 The Hinchens are the owners of the tree. They oppose the making of the orders sought.

3 We have carefully examined the tree for signs of structural weakness or likely catastrophic failure causes. We are satisfied that this is unlikely to occur despite the fact that a substantial portion of the tree’s crown was removed at some time in the past. The growth which as occurred since that time appears to be structurally sound and not likely to cause damage in the near future to Ms Bentley's property

4 There is, however, a significant degree of deadwood located in various parts of the tree’s canopy – a topic to which we will return.

5 We have also had the opportunity to inspect the retaining wall and to inspect the damage caused by water to the ceiling of Ms Bentley's property. The Hinchens purchased the adjacent property in the late 1990s. We have been provided with correspondence from Ms Bentley to the Hinchens from 2000 onwards drawing their attention to her concerns about the tree. together with a copy of a 1999 letter written to the previous owner of the tree (a copy of which was provided to the Hinchens at the time of their purchase of their property).

6 We have carefully looked at the damage to the retaining wall and considered the…