Gainsford v Reid

[2008] NSWLEC 1514

Land and Environment Court

of New South Wales

CITATION:

Gainsford v Reid [2008] NSWLEC 1514

PARTIES:

APPLICANT
David Gainsford

RESPONDENT
Bettina Reid

FILE NUMBER(S):

20950 of 2008

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Removal of two dead trees

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007]NSWLEC 592
Nair v Edwards [2006] NSWSC 1310

DATES OF HEARING:

09/12/08

EX TEMPORE JUDGMENT DATE:

9 December 2008

LEGAL REPRESENTATIVES:

APPLICANT
David Gainsford, litigant in person

RESPONDENT
Bettina Reid, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

9 December 2008

20950 of 2008 David Gainsford v Bettina Reid

The extemporaneous decision was given on 9 December 2008. This written judgment includes the findings given on-site, relevant observations and background information.

JUDGMENT

1 ACTING COMMISSIONER: Mr Gainsford is the owner of 52 Henry Kendall Avenue, Padstow Heights. He makes the application to prevent property damage from trees on the adjoining property at 50 Henry Kendall Avenue, Padstow Heights, which is owned by Ms Reid. Ms Reid’s property is on the eastern uphill side of Mr Gainsford’s property.

2 Mr Gainsford seeks orders for the eight conifer trees in Ms Reid's front yard on the western side of her driveway; that any trees within 3 m of his dwelling be removed to ground level, that any dead trees be removed to ground level, that all dead and diseased branches be removed, and that any remaining trees be appropriately trimmed.

3 He also seeks orders giving him permission to have a suitably qualified and insured company access the backyard of Ms Reid’s property to undertake pruning of trees overhanging his property.

4 None of the trees have caused damage in the past, or are now causing damage.

5 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. 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?

6 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?

7 Further, before determining an application, the Court is to consider the matters in s 12 of the Act.

The trees

8 Mr Gainsford's application includes a short report on the conifer trees in the front yard prepared by Mr Laverty, a qualified arborist. The report states that all the trees have been severely pruned and are in a state of decline. I do not disagree with that assessment. For convenience I have numbered the conifer trees from No 1 nearest the road to No 8 nearest Mr Gainsford's house.

9 The trees of concern to Mr Gainsford in the backyard of Ms Reid’s property are a Jacaranda and Silky Oak near the common boundary. The Jacaranda appears to be in good condition and the Silky Oak in fair to poor condition.

Findings

10 I find that trees No 7 and No 8 which are within 3 m of Mr Gainsford’s dwelling are not likely to cause damage in the near future. Therefore neither tree meets the tests in s 10(2) (a) of the Act and I cannot make orders regarding them. In Yang v Scerri [2007]NSWLEC 592, the Court set out, for future consideration, a rule of thumb as to what might constitute the near future for the purposes of s 10(2)(a) of the Act. In that case, twelve months was adopted as an appropriate period. I also note that twelve months is a more generous period of time than was discussed in Nair v Edwards [2006] NSWSC 1310 (a tree nuisance case in the Supreme Court) where Windeyer J held that an appropriate period of time for future damage might be as short as six months. I find no reason to depart from those timeframes in this case.

11 I find that trees No 3 and No 6 are dead, unstable in the ground, and likely to cause damage to the boundary fence or Mr Gainsford's property in the near future, possibly bringing down the power supply to his house. Therefore these two trees meet the third test in s 10(2) (a) of the Act and I intend to order their removal.

12 I find that trees Nos 1, 2, 4, and 5 are not likely to cause damage to Mr Gainsford's property in the near future. Therefore none of those trees meet the third test in s 10(2) (a) of the Act, and I cannot make orders regarding them.

13 I find that the Jacaranda and Silky Oak tree in the backyard are not likely to cause damage to Mr Gainsford's property in the near future. Therefore neither tree meets the third test in s 10(2) (a) of the Act, and I cannot make orders regarding them.

Considerations

14 Under s 12 (e) of the Act, I note that the Jacaranda and Silky Oak tree contribute to the scenic value of the property, and the surrounding local area.

15 Under s 12 (g) of the Act, I note that the roots of the conifer trees in the front yard are likely to provide some stability of the nearby soil in the garden bed.

Agreement of the parties

16 I note that at the hearing the parties reached the following agreement:

a. If Ms Reid has all the conifer trees (Nos 1 – 8) between her driveway and Mr Gainsford's property removed, Mr Gainsford will pay half the quoted cost less $700, up to a total contribution of $300 towards the cost of cutting the trees to ground level and removal of trunks and branches. (Mr Gainsford’s contribution would be $300 on a quoted cost of $2000.)
b. Ms Reid grants access for an arborist with AQF level 3 qualification and suitable insurances to prune off the lower branches on the western side of the Silky Oak tree up to 6 m above ground, and a prune off the one lower branch of the Jacaranda which originates on the north-western side of the junction at 2 m above ground. That branch is to be cut at about 2.4 m beyond the junction. Ms Reid and the tenant of her property are to be given at least seven days notice of the work, the work shall occur at reasonable times, Ms Reid may supervise the work if she wishes, and Mr Gainsford shall pay the cost of the pruning and branch removal.

Orders

17 The application is upheld in part, and orders will be made as follows:

a. Ms Reid shall remove to ground level the two dead conifer trees (Trees No 3 and 6) in the front yard, by 28 February 2009, at her cost.

___________________

Peter Thyer
Acting Commissioner of the Court

The formal orders are not included as part of this judgment but a copy may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at