Berkman v Ward

[2007] NSWLEC 864

Land and Environment Court

of New South Wales

CITATION:

Berkman v Ward [2007] NSWLEC 864

PARTIES:

APPLICANT
Andrew Berkman

RESPONDENT
Deirdre Ward

FILE NUMBER(S):

21019 of 2007

CORAM:

Fakes AC

KEY ISSUES:

Trees (Neighbours) - Neighbour Application :- Removal of trees, risk to persons and property

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

20/12/2007

EX TEMPORE JUDGMENT DATE:

20 December 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Berkman, litigant in person

RESPONDENT
Ms D. Ward, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

20 December 2007

21019 of 2007 Andrew Berkman v Deirdre Ward

JUDGMENT

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Andrew Berkman of 197 Copacabana Drive Copacabana concerning 4 eucalypts at the rear of the property owned by Mrs Deirdre Watts; that property being 51 Ladera Drive Copacabana. The applicant was assisted by her husband. Mr Everingham, Solicitor, attended on behalf of Gosford City Council.

2 The trees are 3 mature Eucalyptus pilularis (Blackbutt) and one semi-mature Eucalyptus saligna (Sydney Blue Gum). The trees were viewed from both the respondent’s and the applicant’s properties.

3 The applicant is seeking the removal of all 4 trees as he contends that they pose a risk to persons and property. This action is sought as a result of an incident in 2001 when Mr Berkman’s young daughter was struck on the head by a fallen piece of dead wood when she was playing in the backyard with her brother. According to Mr Berkman, the weather was not especially windy. This incident resulted in her hospitalisation.

4 As a result of that incident, Mrs Ward applied to Gosford City Council, and permission was granted, to remove several large limbs from the Blackbutt closest to the applicant’s property that were overhanging his yard. This was done and subsequently Mrs Ward has employed an arborist to remove dead branches from the trees, the last visit being April 2007.

5 After the incident with his daughter, Mr Berkman removed two Eucalypts from his back garden. The respondent questioned the source of the dead branch that struck the applicant’s daughter in that they may have come from Mr Berkman’s own trees. Mr Berkman contends that these were growing away from where the children were playing and that the most likely source was from the respondent’s trees.

6 The applicant is concerned that the trees pose a risk to his family and property as they may fall onto the house or branches may injure his family.

7 It was noted that there is a dead tree in the corner of the property that adjoins the respondent’s property and which overhangs Mr Berkman’s property. This tree is to the north-east of the applicant’s property and in a location subject to north-easterly winds.

8 The applicant purchased his block of land about 11 years ago and built his house. Mrs Ward purchased her property approximately 10 years ago. Both parties acknowledged that the presence of trees was a positive element in their decisions to purchase their properties.

9 Gosford City Council was represented by Mr Everingham, Solicitor for the Council. He referred all parties to a report prepared by the Tree Management Officer for Gosford City Council, Mr Brian Pike. Mr Pike stated that if the tree owner had sought permission to remove the trees there was nothing that he could see that would convince him to allow that to happen. That is, permission to remove the trees would have been refused.

10 Under s 10.2 of the Act, the Court must be satisfied that the trees have caused, are causing or could, in the near future, cause damage to property or injury to persons.

11 The Court is also obliged to consider a number of matters under s 12 of the Act. Clause (d) applies in that the trees are likely to make a contribution to the local ecosystem and to biodiversity as they are likely to be remnants of the original forest. They do make a contribution to the natural landscape and scenic value of the land on which they are situated and to the locality (clause (e)). They have intrinsic vale to public amenity (clause (f) as they are part of the continuum of the forest canopy that remains in this area. They are likely to have a role in stabilising the soil as they are growing on quite a steep slope and large trees do help retain soil (clause (g)).

12 Under s 12 (h)(ii) the Court notes that the respondent has taken steps to prevent further damage or injury by having most of the branches that overhung the applicant’s property removed. She has also employed an arborist to carry out on-going tree pruning.

13 The on site visual inspection from the ground showed the trees to be healthy individuals with no obvious structural defects. There is nothing to suggest that these trees should be removed.

14 The application to remove the trees is dismissed however the Court will order that the owner of the trees is to engage an AQF level 3 Arborist to remove all deadwood down to 30mm in diameter from all parts of the tree that overhang the applicant’s property and to a point 3 m inside the boundary fence on the respondent’s side. This work is to be performed to the standards set out in AS4373:2007. This work is to be carried out annually with the first pruning to be within 90 days of the date of these orders. The tree owner is to pay for this work.

___________________

J Fakes
Acting Commissioner of the Court
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