Bowan v Glanville

[2008] NSWLEC 10

Land and Environment Court

of New South Wales

CITATION:

Bowan v Glanville [2008] NSWLEC 10

PARTIES:

APPLICANT
Betty Bowan

RESPONDENT
Wayne Glanville

FILE NUMBER(S):

20740 of 2007

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) - Neighbour Application :- removal of trees and vegetation, damage to property

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

19/11/2007

 
DATE OF JUDGMENT: 

10 January 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms B. Bowan, litigant in person

RESPONDENT
Mr W. Glanville, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

10 January 2008

20740 of 2007 Betty Bowan v Wayne Glanville

JUDGMENT

This decision was given in chambers. It reflects the observations made and opinions given, and the general agreement of the parties at the on site hearing of 19 November 2007.

1 Acting Commissioner: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning eight small trees situated on 263 Coal Point Road, Coal Point (the property). The property is owned by Mr Glanville.

2 The trees are one Jacaranda, one Ficus benjamina, three Crepe Myrtles, one Bangalow palm, and two Dodonaea.

3 The application has been made by Mrs Bowan, owner of 261 Coal Point Road, the adjoining property to the north of the trees.

4 The application seeks orders from the Court to remove all trees and vegetation from overhanging her property, and to remove all roots of trees that are damaging the concrete under the weldmesh fence.

5 The relevant provisions of s 10(2) of the Act require that the Court be satisfied that one or more of four conditions are met, with respect to each tree subject of an application, before the Court has jurisdiction to consider the application concerning that tree.

6 These tests are:

Has the tree caused damage to the applicant's property?
Is the tree now causing damage to the applicant's property?
Is the tree likely in the near future to cause damage to the applicant's property?
Is the tree likely to cause injury to any person?

7 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

8 I inspected the trees with the parties during the on site hearing on 19 November 2007. I understand that the applicant’s concerns were largely to have leaves and twigs pruned back to the common boundary. This was certainly the case for the small Jacaranda tree at the street frontage and the two Dodonaea trees near the waterfront.

9 In relation to the small Palm tree, the parties differed in their opinion of how many fronds fall off the tree. The palm tree is a Bangalow palm approximately 6 m tall with a total of 14 fronds in the canopy at the time of inspection.

10 I observed some light, dead wood in the canopy of the larger Crepe Myrtle tree. If that wood fell on Mrs Bowan, it may possibly cause injury to a person of her advanced years, but such injury is unlikely.

11 I observed minor damage to the concrete strip under the weldmesh fence adjacent the Fig tree, and to the concrete strip under the weldmesh fence adjacent the two smaller Crepe Myrtle trees.

12 The parties agreed that the weldmesh fence leading in a westerly direction toward the lake might not be located on the boundary. It is possible that the two smaller Crepe Myrtle trees causing minor damage to the concrete strip under the weldmesh fence may be located on Mrs Bowan’s property even though they are on Mr Glanville’s side of the fence.

13 The hearing was adjourned with the agreement of the parties, to allow Mrs Bowan to have a survey done to establish the ownership of the two smaller Crepe Myrtle trees and the location of the fence in relation to the boundary.

14 A draft agreement was provided by the Court to the parties for their consideration, and Directions made that Orders noting that agreement would be issued in Chambers if the parties did not provide an objection to the Court by the close of business on Monday 7 January 2008.

15 As I do not consider any of the matters raised in this application to be serious enough that intervention with the trees should be ordered by the Court, I dismiss the application noting the following agreement between the parties:

General pruning to boundary 1. The parties understand that the property boundaries extend vertically above and below the location of the boundary on the ground;
2. The parties understand that land owners have common law rights to prune overhanging vegetation back to the boundary at their own cost;
3. Mrs Bowan will prune overhanging leaves and twigs back to the boundary when she chooses, at her cost;
4. Mrs Bowan will not seek Mr Glanville’s agreement prior to pruning, nor ask him to do that pruning;
5. Mrs Bowan may place the leaf and twig prunings of Mr Glanville’s plants back onto his property at the corner of the metal fence where Mr Glanville puts his grass clippings. The Palm Tree 6. Mr Glanville will inspect the Bangalow Palm located north-east of his house on a weekly basis and remove any fronds or other palm debris that has fallen onto Mrs Bowan’s property;
7. He will also collect any fallen fronds if advised of them by Mrs Bowan;
8. Mrs Bowan gives permission for Mr Glanville to enter her property to collect the palm fronds and debris;
9. Mrs Bowan will not prune live fronds of the Palm tree as part of general pruning. The Large Crepe Myrtle Tree 10. Mr Glanville will prune out all dead wood that has a diameter greater than 15 mm, within 2 m of the common boundary, from the large Crepe Myrtle tree that is located near the metal fence east of his house. The Fig Tree (Ficus benjamina) 11. Mr Glanville will cut the roots of the Fig tree on his side of the boundary in order to avoid any further damage to the fence and the concrete strip under the fence. He will not remove the roots from Mrs Bowan’s property, nor repair the minor damage;
12. The Fig tree will be pruned back to the boundary twice per year, being in spring and autumn each year. Pruning shall be in those seasons so that the tree is not damaged by sunburn in Summer;
13. The pruning will be carried out in a manner to hedge the eastern side of the tree so that it has an attractive, leafy appearance when viewed from Mrs Bowan’s property;
14. The Fig tree pruning will be at the equal cost of Mr Glanville and Mrs Bowan;
15. Pruning shall be initiated by Mr Glanville who will obtain a quote or quotes for the work and provide his preferred quote to Mrs Bowan giving her an opportunity to discuss the quote and works;
16. Mr Glanville will then have the work carried out and pay for the work;
17. On completion of the work Mr Glanville will provide a copy of the receipt of payment for the work to Mrs Bowan;
18. Mrs Bowan will pay 50% of the cost of the quote or the receipted payment (whichever is less) to Mr Glanville within 30 days of being given the receipt;
19. Nothing in this agreement prevents Mr Glanville from removing the Fig tree if he chooses to do so. The two small Crepe Myrtle trees 20. Mrs Bowan will remove any small Crepe Myrtle trees that are located on her property near the metal fence north of Mr Glanville’s house, at her cost. Future Planting 21. For any future planting, Mr Glanville will select plants and planting locations that will not lead to unreasonable growth over common boundaries with Mrs Bowan. Future Communication

22. Mrs Bowan and Mr Glanville will attempt to have future communication as friendly words over the fence. Mrs Bowan may also put a note or letter in Mr Glanville’s letterbox if she wishes.

___________________

Peter Thyer
Acting Commissioner of the Court