Campbell v Lewis

[2007] NSWLEC 332

Land and Environment Court

of New South Wales

CITATION:	Campbell v Lewis [2007] NSWLEC 332
PARTIES:	APPLICANT Neil Campbell RESPONDENTS Ray and Brenda Lewis
FILE NUMBER(S):	20196 of 2007
CORAM:	Moore C - Bly C - Fakes AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :- Application for removal of trees Compensation claim
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991
DATES OF HEARING:	31 May 2007
EX TEMPORE JUDGMENT DATE:	31 May 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr P Rochaix, agent

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
BLY C
FAKES AC

31 May 2007

07/20196 Neil Campbell v Ray and Brenda Lewis

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: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) lodged by Mr Campbell of 131 Greys Point Road, Greys Point, concerning a number of trees located on the adjacent property generally to the west – being 133 Greys Point Road (a property owned by Mr and Mrs Lewis).

2 Two of the trees are Grey Gums (Eucalyptus punctata) and the other one of them, which is substantially damaged and rendered as a trunk portion only, we believe is a Sydney Peppermint (Eucalyptus piperator).

3 The issues differ with respect to each of these three trees.

4 It is convenient to deal with the first of the Grey Gums located toward the front of the Campbell property, in the vicinity of the house located on 133 Greys Point Road.

5 There is a dispute between Mr Campbell and Mr Rochaix, the agent appearing for Mr and Mrs Lewis, as to whether or not this tree (or at least a substantial or majority portion of it) is located on the Lewis’s property – this being necessary in order to give the Court jurisdiction to deal with it.

6 For the purposes of this decision, we have determined that we should assume that the majority of the tree, at its base, is located on the Lewis’s property. We have, therefore, dealt, on the basis of that assumption, with the merit of the application by Mr Campbell for the removal of a substantial branch which overhangs his property.

7 We have carefully examined that branch of the tree and we have considered the area underneath it on Mr Campbell's property where, if the branch were to fail, it would be likely to fall.

8 We are satisfied, first, that there is, on our assessment, no visible reason to believe that it is likely that the branch’s attachment would fail in the foreseeable future. We are satisfied, as a consequence, that none of the three tests (particularly the third of the tests) in s 10(2)(a) of the Act is satisfied.

9 As to the risk of injury to persons, it is clear that the likely target area, if the branch were to fail, is an area that is not significantly used as a private open space or recreation area by members in Campbell family (and that is conceded by Mr Campbell). The test in s 10(2)(b) of the Act is therefore not satisfied.

10 We are, therefore, satisfied that, the present time there is no basis upon which we could order any intervention with this tree (on the assumption that it is within the jurisdiction of the Court to do so).

11 Reaching that conclusion, at this time, of course, does not prevent Mr Campbell making some future application with respect that tree if circumstances change.

12 The second Grey Gum which is subject to the application, overhangs, in part, the Campbell’s house and upper deck. If this tree failed, it would also have an impact on the lower deck of the house.

13 We have looked at the various elements of the structure this tree. We are satisfied that, on the Campbell's side of the tree, there are two branches which warrant attention as they are, in our opinion, in decline. There is significant risk of their failure, in the reasonably near future, and thus a risk of injury to persons if they were to fail. These branches would also be likely to cause significant damage to the Campbell house if they were to fail.

14 We are therefore satisfied that, on balance, the third of the tests under s 10(2)(a) and the test under s 10(2)(b) of the Act have been satisfied with the above branches. As a consequence, they should be removed.

15 These branches are on a tree located on the Lewis’s property and there is no reason that we can see not to require the cost of such removal to be met by Mr and Mrs Lewis.

16 The orders of the Court will provide that those two branches are to be removed; that the removal is to be carried out by an AQF level 3 qualified arborist and that such removal is to be effected within 60 days of the date of the orders of the Court.

17 The Court will provide, in the orders, a marked photograph clearly identifying the two branches which are to be removed.

18 The third element of the claim relates to a claim for damage to a pine fence with which is located on the common boundary adjacent to a staircase leading the lower levels of the Campbell property.

19 We do not understand it to be disputed that the damage to this fence was caused by the failure of the Sydney Peppermint.

20 We have been provided with a quotation from a building company for the removal of the damaged fence and its re-instatement. The quotation is for the sum of $1012. We have seen a receipt that records that this sum has been paid.

21 Only one half of this sum is claimed, as Mr Campbell acknowledges that the sum $506 has been reimbursed to him by his insurance company. The insurance company declined to meet the full cost on the basis that dividing fences, pursuant to the Dividing Fences Act 1991, are equal responsibilities of neighbours.

22 We are satisfied that the work has been done and the money has been paid. Although Mr Roachaix, for the respondents, submits that the amount is excessive, we have no doubt that the work has been done.

23 There is no suggestion of any collusion or improper or inappropriate relationship between Mr Campbell and the builder who has carried out that work.

24 We therefore consider that it is reasonable, under the circumstances, that Mr Campbell be reimbursed the sum of $506.

25 The fourth element of the claim relates to damage to a spa pool located on the lower of the two deck areas of the North-facing aspect of Mr Campbell's house.

26 The claim is in two parts totalling $1100.

27 The first part is a claim for $700 – being the balance of the amount expended to upgrade the spa (upon the replacement of the damaged spa pool) by providing the appropriate level of operating plant and fittings for the spa as replaced.

28 The second part is a claim $400 for the labour expended by Mr Campbell and his employees of his commercial business and for some materials supplied by him in repairing the deck. The labour cost included carrying the new spa pool to the lower deck.

29 It is convenient to deal with the latter part of the claim in the first instance. Although this claim coincides with the balance of the amount of a quotation for replacement of the pool, it appears to us that this is a serendipitous coincidence.

30 As we had no receipts or basis of calculation for this part of the claim, we are not satisfied that there is any evidentiary basis upon which we could make such an award. Therefore that part of the claim is rejected.

31 With respect to the claim for $700 (being the shortfall between the $1800 cost of installation and upgrading of the fittings and operating plant for the spa), it is clear that $1100 has been reimbursed to Mr Campbell by his insurance company for the spa upgrade.

32 The insurance company has agreed to meet half the originally quoted cost of upgrading the fittings and operating plant for the spa. The insurance company had already met the cost of the pool element of the spa.

33 The explanation for the reason for the upgrading given by Mr Campbell and not contradicted by any evidence (although resisted that by Mr Rochaix on behalf of the respondents) is that a spa of the original design which would fit into the hole in the deck was no longer available.

34 The only spa that would fit into the existing hole in the deck was one which would only operate with upgraded plant, equipment and fittings.

35 Had Mr Campbell installed an upgraded spa and the original spa had been available, then it would not have been reasonable to require any additional compensation to be paid for by the Lewis's.

36 However, we are satisfied that, because the upgrading of the plant and equipment was rendered necessary by the fact that it was required to make operational a spa which would fit and which replaced a spa that was damaged by the tree which fell from the Lewis’s property, it is not unreasonable for require the Lewis's to meet that part of the claim.

37 We are therefore satisfied that the Lewis's should pay Mr Campbell a total of $1206 for the reasons outlined above.

38 Such sum is to be paid to Mr Campbell within 60 days of the date of the orders of the Court.

Tim Moore

Commissioner of the Court

Trevor Bly

Commissioner of the Court

Acting Commissioner of the Court