Frost v Llewellyn

[2007] NSWLEC 699

Land and Environment Court

of New South Wales

CITATION:

Frost v Llewellyn [2007] NSWLEC 699

PARTIES:

APPLICANT
Raymond and Margaret Frost

RESPONDENT
Professor Gwynnyth Llewellyn

FILE NUMBER(S):

20711 of 2007

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Pruning of trees and damages to property

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

16/10/2007

EX TEMPORE JUDGMENT DATE:

16 October 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr and Mrs Frost, litigants in person

RESPONDENT
Professor G. Llewellyn, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

16 October 2007

20711 of 2007 Raymond and Margaret Frost v Professor Gwynnyth Llewellyn

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 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning three trees located on a property described in the application as Lot 17, 56 Torokina Avenue, St Ives (the property). I am advised by the owner of the property that the correct address of the property is 58 Torokina Avenue, St Ives. The property is owned by Professor Gwynnyth Llewellyn.

2 The trees are an English Oak (Quercus robur), a Liquidambar (Liquidambar styraciflua) and a Lemon Scented Gum (Coryimbia citriodora).

3 The application has been made by Raymond and Margaret Frost, owners of 54 Torokina Avenue, the adjoining property to the west of the trees.

4 The application seeks orders from the Court that the trees be removed.

5 The relevant provisions of s 10(2)(a)&(b) 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 trees, and am assisted in my assessment of the trees by the arborist's report provided by Mr Frost.

9 All three trees are mature and appear to be in a healthy condition with no obvious signs of any structural or other defects.

10 With regard to the Oak tree and the Liquidambar; Mr Frost has stated at the hearing that he now does not wish the Oak tree or Liquidambar to be removed.

11 Mr Frost is however, still concerned about the growth of the branches of the Oak tree and the Liquidambar tree over the boundary.

12 Mr Frost is also concerned about damage to his paving that may have been caused by the roots of these trees, and damage to paving in his backyard that may occur in the future. He has provided photographs and quotations for paving repair as evidence that paving damage has occurred in the past and been repaired. He has also indicated that some mounding of paving on the northern side of his pool may be caused by tree roots.

13 Professor Llewellyn has stated that she is willing, at her cost, to have branch pruning done at the boundary, and to make good paving damaged by roots of her trees. There is no need then for the Court to make any orders in this regard.

14 The general terms of the agreement between the parties regarding the Oak tree and the Liquidambar tree is noted as a preamble to the Court's order, to assist the parties in ongoing management of these trees.

15 With regard to the Gum tree, I am satisfied by the photos provided and the confirmation from Professor Llewellyn that the Gum tree did drop a large branch in the pool area in 2004. I am also advised by Mr Frost that the tree had dropped two branches previously; one in 2001 that damaged the roof, and another in 2002 that penetrated the roof and ceiling of his house. Mr Frost also advised that a number of other large branches had fallen into his pool, but Professor Llewellyn was not aware of those.

16 I am also satisfied that Professor Llewellyn obtained a permit from Ku-ring-gai Council to prune the Gum tree in 2004 in response to the branch failure at that time. I am advised that the Gum tree was pruned approximately to the boundary at that time. I have observed pruning cuts on the Gum tree, and that the tree now has little or no overhang of the boundary.

17 I am satisfied from the information provided by Professor Llewellyn and Mr Frost that the branch failures were in wild storm conditions and not in still weather.

18 I note that the parties have agreed on future pruning back to the boundary of overhanging branches of the Gum tree.

19 I am therefore satisfied that due to the pruning that has taken place, and the agreed future pruning, the Gum tree does not present a likely risk of injury to a person or of damage to Mr Frost's property in the near future (these being the relevant tests in this case under s 10(2) of the Act).

20 On the basis of the above information I do not find it appropriate to order any intervention with any of the three trees, and therefore the application is dismissed.

21 However, the parties have agreed on future pruning of overhanging branches and repair of paving damage caused by tree roots. That agreement is recorded as follows:

Pruning of Branches
• The pruning of all branches that overhang the boundary, belonging to the three trees, shall be carried out in the near future, and at periods of not less than 5 years thereafter.
• The pruning shall be back to the boundary or a reasonable distance over the boundary in order for the pruning to comply with the Australian Standard 4373 of 2007 Pruning of Amenity Trees.
• Pruning shall be initiated by Mr Frost who will obtain a quote or quotes for the work and provide his preferred quote to Professor Llewellyn giving her an opportunity to discuss the quote and works.
• Mr Frost shall then have the work carried out and pay for the work.
• On completion of the work Mr Frost shall provide a copy of the receipt for payment for the work to Professor Llewellyn.
• Professor Llewellyn shall pay 50% of the cost of the quote or the receipted payment (whichever is less) to Mr Frost within 30 days of being given the receipt.
  Paving Damage
• For the mounded paving present on the northern side of his pool, Mr Frost shall have a contractor or other person investigate the damaged area and expose the cause of the damage.
• Mr Frost shall then invite Professor Llewellyn to look at the situation.
• If there is disagreement about the cause of damage they are to obtain the advice of a suitably qualified expert or mediator to assist them to reach agreement on the cause of damage. They shall share the cost of any such expert and/or mediator equally.
• If the cause of damage is established to be the roots of a tree or trees growing on Professor Llewellyn's property, she is to pay the full cost of reasonable repair.

• The above process shall also apply to any future significant paving damage.

___________________

P. Thyer
Acting Commissioner of the Court
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