Denney v Baxter

[2007] NSWLEC 858

Land and Environment Court

of New South Wales

CITATION:

Denney v Baxter [2007] NSWLEC 858

PARTIES:

APPLICANT
Dr John & Lieselotte Denney

RESPONDENT
Harold & Michelle Baxter

FILE NUMBER(S):

20860 of 2007

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) - Neighbour Application :- Arborist Report, reimbursement of costs

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

21/12/2007

EX TEMPORE JUDGMENT DATE:

21 December 2007

LEGAL REPRESENTATIVES:

APPLICANT
Ms J. Gore, solicitor
of Galland Elder Lulham

RESPONDENT
Mr H. Baxter, litignat in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

21 December 2007

20860 of 2007 Dr John & Lieselotte Denney v
Harold & Michelle Baxter

JUDGMENT

The determination of consent orders was given as an extemporaneous decision. The orders have been edited prior to publication.
The following judgment was made in chambers and reflects the observations made and the comments and opinions given at the hearing.
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 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning numerous shrubs and trees (the trees) situated at 14 Church Street, Goulburn (the property). The property is owned by Harold and Michelle Baxter.

2 The trees are a large Deodar (Cedrus deodara) and numerous shrubs and small trees including Cotoneasters, Cypresses, Oleanders, Privets, a Prunus and a Palm.

3 The application has been made by Dr John Denney and Mrs Lieselotte Denney, owners and occupiers of 16 Church Street, Goulburn the adjoining property to the north of the trees.

4 The application seeks orders from the Court as follows:

(A) That the owner of the subject property perform, at his expense, within 60 days the recommendations of Arborist Report of Wayne Back numbered 1-7 in his report dated 06/04/07.
(B) That the owner reimburse the Applicants for plumbing costs in removing tree roots from sewer lines in the sum of $960.33 for plumbing works conducted by Holloway/Johnsons Plumbing in 1999 and 2001 by S. & K. Wilson Pty Limited in 2003.
(C) Reimbursement to the Applicants for the Arborist Report of Wayne Back dated 6th April 2007 in the sum of $330.00.

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 have inspected the trees and shrubs from both sides of the common boundary fence, and considered the information provided by the parties in their written submissions and at the hearing.

9 There are approximately 20 shrubs and small trees growing along the common boundary on the Baxter’s side of the fence. These plants are of various heights from 4 m to 8 m. The majority of the plants currently overhang the fence by less than 1 m and a few overhang by up to 2 m.

10 The shrubs and small trees are reported to have been present and taller than fence height when the Baxters bought their property in the 1980s.

11 The Baxter’s property is heritage listed by the Local Council.

12 The shrubs and small trees provide screening between the Baxter’s property and a row of eight units built on the Denney’s property circa 1969.

13 The Denney’s units are located approximately 4 m from the common boundary. They are attached, single storey dwellings with flat roofs, and form a row parallel with the boundary. A concrete parking area extends to the common boundary at the rear of the units.

14 Dr and Mrs Denney rent the units through an agent. Although likely to be in their eighties, Dr and Mrs Denney appear to be fit, and Dr Denney has advised that they do most of the general maintenance of the units.

15 The Deodar tree growing in the backyard of the Baxter’s property is approximately 19 m tall. It is located approximately 5 m from the common boundary. It appears to be healthy with sound branch junctions and ground attachment. No evidence was provided that the tree has dropped live or dead material larger than twigs. Some branches overhang the boundary with a slight overhang of the roof of the units.

16 The Deodar is a very attractive old tree in good condition. It is visible from the surrounding area, and is an appropriate species for the grounds of the Baxter’s heritage listed property.

17 The Denneys complain that the Deodar drops leaf needles onto the units, and that the needles block roof gutters and have caused damage to timber window frames and fly screens. They also claim the needles may contaminate stored water if the unit roofs are connected to a water tank.

18 I viewed the roofs of the units from the high ground at the west of the Denney’s property. I observed very few Deodar needles or other leaves on the roofs or in the roof guttering of the units. I accept that recent heavy rain may have washed the roofs and gutters clean.

19 I observed the window frames and fly screens on the southern walls of the units facing the common boundary. I observed some collection of leaves in corners and gaps of the building. I also observed some decay of timber frames, particularly where mortise and tenon joints were not sealed or properly protected by paint. I am of the opinion that the observed building dilapidation is the result of the construction methods and inadequate maintenance rather than the fault of the Baxter’s trees and shrubs.

20 I am satisfied from Dr Denney’s advice and the plumbers’ receipts and notes that the roots of one or more trees or shrubs growing on the Baxter’s property caused sewer blockages on the Denney’s property in 1999 and 2003.

21 I note Dr Denney’s advice provided at the hearing that the sewer pipes are the original earthenware pipes installed circa 1969, and that the pipes have not been repaired to avoid leakage or further entry of roots.

22 I also note that Mr Baxter was first informed of the sewer blockage in a letter from the Denney’s solicitors dated 7 May 2007.

23 I further note that Mr Baxter removed four pine trees and two palm trees to reduce overhang, at Dr Denney’s request approximately 5-10 years ago. That work was done at Mr Baxter’s cost. I consider it possible that one of those trees may have caused the sewer blockages.

24 I am satisfied that without repair or replacement of the sewer, future sewer blockage on the Denney’s property by roots of the Baxter’s trees is likely, but not necessarily in the near future.

25 On the basis of the information provided and observed, I am not inclined to order any intervention with the trees or shrubs. Such a determination would not in any way impact on the common law rights of the applicants to prune the trees and shrubs to the boundary or to the extent permitted by the Council Tree Preservation Order or a consent issued by the Council, at their own expense if they wish to do so.

26 I am mindful however, of the previous unsuccessful negotiations of the parties, the reported and observed frustrations and ill feelings of the parties, and the costs of legal and other advice to the parties in relation to the trees and shrubs.

27 I find it appropriate for the above reasons, to make orders for management of the trees and shrubs and to resolve the matters of compensation and costs. In this regard, as the parties have reached some grounds of agreement at the hearing, I am willing to make orders by consent of the parties to give effect to their agreement.

28 Therefore, on the basis that the application is upheld in part, the following orders shall be made by consent of the parties:

Pruning to control existing overhang of the common boundary
1. The shrubs and small trees growing along the northern boundary of 14 Church Street, Goulburn adjacent 16 Church Street, shall be pruned above the top of the fence lattice to be 0.3 m clear of the boundary on the Baxter’s side of the boundary. Below the top of the lattice the shrubs and small trees shall be pruned to the boundary, and any branches pushing on the fence shall be trimmed clear of the fence;
2. The Deodar tree growing in the backyard of 14 Church Street, Goulburn shall have the four major branches growing on its northern side pruned back to the boundary with 16 Church Street, and pruned further as necessary to comply with AS 4373, and other smaller branches and foliage shall be trimmed to approximately 1.0 m on the Denney’s side of the boundary, or such lesser work as permitted by Goulburn/Mulwaree Council in response to a written application to Council to carry out the pruning;
3. The pruning in 1. and 2. above shall be carried out in accordance with AS 4373-2007: The Australian Standard for Pruning of amenity trees, by an arborist holding AQF Level 3 qualifications and suitable insurances;
4. The pruning in 1. and 2. above shall be completed by 29 February 2008;
5. The pruning in 1. and 2. above shall be organised by Dr Denney, giving Mr Baxter at least one week notice of the work. Trimmings shall be removed through the Baxter’s land. The Baxters shall allow access to their property at reasonable times for the work to be carried out, and shall be entitled to supervise that access;
6. For the pruning in 1. and 2. above, Mr Baxter shall pay the whole of the invoiced amount to the contractor. Within 30 days of being given a copy of the receipt for payment of the completed work, Dr Denney shall pay 30% of the receipted amount to Mr Baxter;

Future pruning to control overhang of the common boundary
7. That the parties make all reasonable endeavours to reach agreement regarding future pruning of shrubs and trees on a two yearly schedule, sharing the cost of the pruning on a 50/50 basis;

Sewer damage
8. That Dr and Mrs Denney make no claim against the Baxters for past sewer damage, and no claim for any future sewer problems arising before 31 December 2009;

Costs
9. That each party pay their own legal and other costs in relation to this application.

___________________

Peter Thyer
Acting Commissioner of the Court