Cutler v Smith

[2007] NSWLEC 832

Land and Environment Court

of New South Wales

CITATION:

Cutler v Smith [2007] NSWLEC 832

PARTIES:

APPLICANT
M B and N S Cutler

RESPONDENT
R Smith

FILE NUMBER(S):

20935 of 2007

CORAM:

Tuor C - Fakes AC

KEY ISSUES:

Trees (Neighbours) :- Sydney Blue Gum tree, damage to property, risk of injury to persons.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

17/12/2007

EX TEMPORE JUDGMENT DATE:

17 December 2007

LEGAL REPRESENTATIVES:

APPLICANT
self represented

RESPONDENT
self represented

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C
Fakes AC

17 December 2007

20935 of 2007 Malcolm B and Norelle S Cutler v Richard Smith

JUDGMENT

1 This is an application pursuant to s. 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Cutler of 123 Castle Hill Road West Pennant Hills concerning a mature Eucalyptus saligna (Sydney Blue Gum). The tree is wholly located on 1 Glenhope Road West Pennant Hills, a property owned by Mr Richard Smith and leased by Alison and Mark Wharton. Mr and Mrs Wharton operate a childcare centre on the property.

2 The tree is a mature and healthy specimen located within approximately 1 m of the boundary fence between the applicant’s and the respondent’s properties.

3 The Cutlers are concerned that the tree has dropped, and will continue to drop, branches onto their roof thus causing damage to their property, particularly the breaking of roof tiles. They are also concerned about the risk of injury to themselves and to the children in the childcare centre. They are seeking either the pruning of the tree to below roof level or its removal. They are also seeking compensation of a quoted amount of $2667.00 which includes $330.00 for the replacement of broken roof tiles, $1650.00 for internal painting required as a result of water damage from the broken tiles and $500.00 for paid security while these works are carried out plus GST.

4 The owner of the tree does not want the tree removed or substantially pruned as he submits that the tree existed well before either property was built, it is part of the natural landscape, it contributes to the local biodiversity and has great aesthetic value.

5 Under s 10.2 of the Act the Court must be satisfied that the tree has caused, is causing, or will, in the near future, cause damage to property or injury to persons. The Court must also consider a number of matters under s 12 of the Act. In the case of this tree, the following clauses of s 12 are considered relevant:

Clause (c) The tree is likely to have some scientific value as it is likely to be a remnant of the Blue Gum High Forest ecological community,
Clause (d) Following from clause (c), this tree is likely to make a contribution to the local ecosystem and to biodiversity,
Clause (e) The tree contributes to the natural landscape and scenic value of the land on which it is located;
Clause (f) The tree has value to public amenity as it is visually prominent.

6 Also under s 12, the following clauses are considered important. Clause (h)(i) requires consideration of anything, other than the tree, that has contributed to any such damage or likelihood of damage, including any act or omission by the applicant. In this case, the applicants were aware of the tree when they purchased the property and built their house in 1996/97. While we accept the right (subject to approval) of the applicants to build their house on any part of their property, they did choose to build in close proximity to a large tree knowing the inherent risks in doing so. We consider the risk of the tree dropping limbs, under normal weather conditions to be limited. Locating the house in close proximity to the tree means that the applicants share responsibility for any potential impacts of the tree on their property.

7 Under s 12, clause (h)(ii) we must consider any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage or potential injury. We note that in about 1996, the owner permitted the removal of a substantial branch which overhung the carport and house that were originally located on the applicants’ property prior to them building the current residence. In response to the applicants’ concerns about the safety of the tree, the tree was inspected by WorkCover and the Department of Community Services. Three subsequent arborists’ reports were commissioned by the owner and the lessees. Further overhanging branches were removed in 2005 and a vine was removed from the tree. The arborists are of the opinion that the tree is healthy and structurally sound.

8 Despite the fact that the tree is sound and healthy, and despite the fact that the applicants chose to build beneath the tree, we agree that the tree has caused some damage to the applicant’s property and may continue to do so in extreme weather conditions.

9 Therefore the Court makes the following orders:

1. Within 90 days of the date of the published orders, the owner shall engage an AQF level 3 arborist to remove all deadwood down to 30 mm in diameter and small epicormic regrowth within 2 m of the boundary fence. This is to be done on an annual basis. This work is to be carried out at the expense of the tree owner.

2. With respect to the compensation, the cost of $330.00 to replace the roof tiles is to be shared on a 50:50 basis between the applicants and the tree owner.

3. The applicants are to obtain 3 quotes for the internal painting of the water-damaged wall and ceiling. The owner is to pay half of the cheapest quote to a maximum of 50% of $1,650.00 plus GST, within 30 days of the work being undertaken. That quote is to be limited to the repairs and is not to include costs for security.

___________________

Annelise Tuor
Commissioner of the Court

___________________

Judy Fakes
Acting Commissioner of the Court