Dwyer v Woischuk

[2008] NSWLEC 46

Land and Environment Court

of New South Wales

CITATION:

Dwyer v Woischuk [2008] NSWLEC 46

PARTIES:

APPLICANT
Sandra Dwyer

RESPONDENT
John Woischuk

FILE NUMBER(S):

21119 of 2007

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) - Neighbour Application :- Removal of a tree

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

17/01/2008

 
DATE OF JUDGMENT: 

17 January 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms S. Dwyer, litigant in person

RESPONDENT
Mr J. Woischuk, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

17 January 2008

21119 of 2007 Sandra Dwyer v John Woischuk

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 Acting Commissioner: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning one tree (the tree) situated on 1 Alfa Place Ingleburn (the property). The property is owned by John Woischuk.

2 The tree is a Cypress pine (Cupressus sp).

3 The application has been made by Sandra Dwyer, owner of 21 Lancia Drive, Ingleburn, the adjoining property to the east of the tree.

4 The application seeks orders from the Court for removal of the tree.

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 examined the tree and consider that it is an overmature specimen having a height and canopy spread of approximately 9 m and 7 m respectively. The tree has three trunks from near ground level. The canopy has separated, presumably as the western trunk and eastern trunks have moved apart. There is extensive included bark between the trunks, with noticeable reduction of the trunk cross sectional areas towards the base of the tree. I consider that a trunk of the tree is likely to collapse in the next 10 years, but this is not likely in the near future.

9 The tree is located on the Lancia Drive frontage of Mr Woischuk’s property, roughly in line with the front alignment of Mrs Dwyer’s house. The trunks at ground level are within 1 m of Mr Woischuk’s house. The eastern trunk above 0.6m height, and the middle trunk above 3 m height, both overhang the driveway on Mrs Dwyer’s property.

10 The eastern trunk of the tree has pushed the weldmesh fence on the common boundary out of alignment. This is minor damage that the parties agree could be easily repaired without cost if the eastern trunk of the tree was removed.

11 Mrs Dwyer’s driveway consists of two concrete strips from the front boundary to the front alignment of her house, and a concrete slab covering the 3 m to 4 m wide area between her house and the common boundary. The tree is located close to the junction of the slab with the driveway strips. There is visible damage to both the slab and strip sections of Mrs Dwyer’s driveway. The corner of the concrete slab adjacent the tree has cracked and sunk. A similar crack and sinkage of the slab exists on the corner adjacent Mrs Dwyer’s house. The concrete driveway strips have failed, tilted and subsided in many locations both close to and distant from the tree. The damage appears to be greater on the strip furthest from the tree. Mr Woischuk advises that he observed the driveway slab and strips being installed as a quick job without any reinforcing steel, shortly before Mrs Dwyer bought her property about seven years ago.

12 I observed that the exposed soil on Mrs Dwyer’s property, Mr Woischuk’s property and the adjacent nature strips appeared to be clay.

13 I am not satisfied that the tree has been a significant cause of the damage to Mrs Dwyer’s driveway. I consider it more likely that the damage has resulted from vehicle load on driveway structures that are inadequate for the soil which is likely to have low load capacity when saturated.

14 I note that Mrs Dwyer is not seeking any compensation for the damaged driveway.

15 I am advised that Mrs Dwyer’s husband has cut his head once on the eastern trunk of the tree when riding his bike past that trunk which leans over their driveway.

16 Mrs Dwyer and her husband also claim that the tree drops leaves into their roof guttering and onto their car if they park under the tree.

17 I did not observe much leaf litter on either property. The tree is relatively small and is a species that typically does not create a lot of debris. The tree does not overhang Mrs Dwyer’s roof, and only covers approximately 15 square metres of her property. I accept that the tree overhang may be in the most convenient location to park her car, but consider that is not sufficient reason for the Court to order pruning or removal of the tree.

18 Mr Woischuk has advised that the local Council have inspected the tree and would allow pruning of the eastern trunk and a branch of the middle trunk that overhang Ms Dwyer’s property.

19 I note then that Mrs Dwyer could have removed any danger of injury and reduced the amount of leaf fall by pruning off those parts of the tree that overhang her property, by exercising her common law right to prune overhanging trees back to the boundary at her own expense.

20 The tree is visually attractive in the front yards of the two properties, and provides some screening of Mr Woischuk’s deck from the street and from Mrs Dwyer’s driveway.

21 On the basis of the above information, I am not satisfied that the Court should order any intervention with the tree.

22 However, during this hearing, the parties have come to an agreement to remove the tree.

23 I therefore dismiss this application, noting the following agreement between the parties:

1. The tree shall be cut down to within 0 . 3 m of the ground before 31 March 2008 by a contractor agreed to by both parties and holding suitable insurances;
2. Mrs Dwyer shall pay half the quoted cost to cut down and remove the tree;
3. If Mr Woischuk wishes, he may have the tree left on his property and pay just the difference between half the quoted cost to cut down and remove the tree, and the quoted cost to only cut the tree down. He would then be responsible for removal of the tree at his own cost within a reasonable period of time;
4. As an example: Using the rough estimate of prices provided during the hearing by a contractor who had previously inspected the tree, the cost to cut down and remove the tree may be $500 and to cut it down only may be $250. On that basis Mr Woischuk would be required to pay $250 if the tree is cut down and removed, but no payment if the tree is only cut down.

___________________

Peter Thyer
Acting Commissioner of the Court