Gallagher and Heycott v Kylor Pty Ltd

[2009] NSWLEC 1003

Land and Environment Court

of New South Wales

CITATION:

Gallagher and Heycott v Kylor Pty Ltd [2009] NSWLEC 1003

PARTIES:

APPLICANT
Susan Gallagher and Michelle Heycott

RESPONDENT
Kylor Pty Ltd

FILE NUMBER(S):

20834 of 2008

CORAM:

Thyer AC

KEY ISSUES:

TREES (NEIGHBOURS) :- Compensation ordered for damage to applicant's car and pruning of deadwood ordered.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

16/12/2008

 
DATE OF JUDGMENT: 

9 January 2009

LEGAL REPRESENTATIVES:

APPLICANT
Ms S Gallagher and Ms M Heycott, litigants in person

RESPONDENT
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

9 January 2008

20834 of 2008

Susan Gallagher and Michelle Heycott v Kylor Pty Ltd

JUDGMENT

1 ACTING COMMISSIONER: I reserved my decision at the on-site hearing on 16 December 2008. This written judgment is based on my observations and notes made at the hearing, statements and information provided by the applicants at the hearing, documentation on the Court file, and information on the Shoalhaven City Council web-site.

2 The application was made by Susan Gallagher, an owner of 112 Curvers Drive, Manyana. Ms Gallagher and Michelle Heycott were present at the hearing and advised me that Ms Heycott is a joint owner of their property, and that Ms Heycott’s name is on the title. They requested that the application be amended to include both their names as applicants. I have granted leave to their request, and amended the application to include both names.

3 The application was made to rectify or prevent property damage, and to obtain compensation for damage to the applicant’s car. The application concerns five Gum trees which appear to be Bangalay Gums (Eucalyptus botryoides) and a number of saplings situated on the adjoining property to the west owned by Kylor Pty Ltd (Kylor).

4 The Kylor property was identified in the application by a street address in Curvers Drive Manyana. During the hearing I became aware that the address may be incorrect, and the applicants advised that the Kylor property should be identified as Lot 1070 DP 836591. The applicants sought leave to amend the error of address during the hearing. As the original application clearly identified the property where the trees are situated by photographs and a sketch, I find that the error is a defect of form rather than substance and have granted leave, amending the property identification details.

5 Ms Gallagher initially identified Mr Salvatore Paino, one of the Directors of Kylor as the owner of the property and served papers on him. Mr Paino attended the tree phone callover on 22 September 2008, but declined to accept service on behalf of Kylor. The application was then amended to show the name of the property owner as Kylor Pty Ltd, and Ms Gallagher served papers on the postal address of Kylor. Mr Paino attended the tree callover on 17 November 2008 as the representative of Kylor, at which Directions including the date of the on-site hearing were set. No representative of Kylor attended the on-site hearing.

6 The Kylor property was identified on the Shoalhaven City Council web-site on 17 December 2008, and found to be Zone No. 3(f) (Business’F’ (Village) Zone). I am satisfied on that basis that the property is land to which the Act applies in accordance with s 4(1) (a) of the Act.

7 The application sought Orders for removal of five to six big trees and all the smaller trees which affect the side of the applicant’s property, as the trees are blowing over and damaging the applicant’s car and garden when the branches are coming off.

8 For ease of reference I have identified the large tree nearest Curvers Drive as Tree 1, the next to the north as Tree 2, and so on to Tree 5 adjacent the northern end of the applicant’s property.

9 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?

10 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?

Findings

11 Tree 1 appears to be a Bangalay Gum, located about 3 m west of the common boundary, nearest Curvers drive. The tree is about 14 m tall, with four trunks from near ground level having diameters of about 0.4 m, 0.3 m, 0.2 m and 0.15 m. The applicants advise that a dead branch about 60 mm thick fell from this tree and squashed a small palm tree growing in their garden. On that basis the tree meets the first test in s 10(2)(a) of the Act. I observed that there is some dead wood still in the tree, and I will order removal of the dead wood. The tree appeared to be stable in the ground, with sound trunks.

12 Tree 2 is a Bangalay Gum, located about 1 m west of the common boundary. The tree is about 15 m tall. It has co-dominant trunks but the open fork has no included bark. The tree appeared to be stable in the ground, with sound trunks. The applicants advise that a dead branch about 3 m long and 80 mm thick fell from this tree in August 2005 damaging a car owned by the applicant. On that basis the tree meets the first test in s 10(2)(a) of the Act. I observed that the remaining 4 m or so of the dead branch and other dead wood is still in the tree, and I will order removal of the dead wood.

13 Tree 3 is a Bangalay Gum, located about 1 m west of the common boundary. The tree is about 15 m tall. I observed a dead branch about 5 m long and 75 mm thick that overhangs the applicant’s driveway. The applicants were concerned that the tree drops dead twigs, and that the whole tree may fall on their carport and house. No evidence was provided that the twigs have caused damage, and the tree appeared to be stable in the ground, with sound trunks. However, I find that the dead branch is likely to fail and cause injury as the area under the branch is frequently used by the applicants for access to the carport and their cars. On that basis the tree meets the test in s 10(2)(b) of the Act, and I will order removal of dead wood from the tree.

14 Tree 4 is a Bangalay Gum, located about 4 m west of the common boundary. The tree is about 14 m tall. It has co-dominant trunks from about 1.5 m above ground, but the open fork has no included bark. The tree appeared to be stable in the ground, with sound trunks. I observed numerous dead branches up to 4 m long and 70 mm thick that overhang the applicant’s property. I find it likely that one or more of the dead branches will fall causing damage to the dividing fence or to the applicant’s property in the near future, or injury to people. On that basis the tree meets the third test in s 10(2)(a) of the Act and the test in s 10(2)(b) of the Act, and I will order removal of dead wood from the tree.

15 Tree 5 is also a Bangalay Gum with co-dominant trunks from about 1.5 m above ground, and having an open fork with no included bark. The tree is located about 2 m west of the common boundary, and is about 15 m tall. The tree appeared to be stable in the ground with sound trunks. I observed a few dead branches up to 4 m long and 70 mm thick that overhang the applicant’s backyard and the area beyond that they use frequently. I find it likely that one or more of the dead branches will fall causing damage to the dividing fence or to the applicant’s property in the near future, or injury to people. On that basis the tree meets the third test in s 10(2)(a) of the Act and the test in s 10(2)(b) of the Act, and I will order removal of dead wood from the tree.

16 The applicants showed me the smaller trees referred to in their application, and I identify them as Eucalyptus saplings up to 6 m tall. They also showed me a photograph of one sapling that blew over damaging a frond of a small palm in their garden. I understand that the broken sapling has been moved but it and its roots are still on the Kylor property. I find that the sapling meets the first test in s 10(2)(a) of the Act, but do not find that any order should be made regarding it.

17 I find that the remaining saplings are not likely to cause damage in the near future, or injury to people, due to their small size and height, and soft, bushy foliage. On that basis the remaining saplings do not meet any of the tests in s 10(2)(a) or s 10(2)(b) of the Act.

Compensation

18 The applicants seek compensation for damage to a Mazda Tribute car owned by Michelle Heycott. They claim that the car was damaged by a dead branch about 3 m long and 80 mm thick that fell from Tree 2 during very windy weather in August 2005. The car was parked on the driveway within the property of 112 Curvers Drive at the time of damage. The damage is a small dent in the bodywork, on the passenger side above the rear windscreen.

19 The applicants claim that they sent a letter to Mr Paino in February 2003, stating concern about branches that might fall off the trees in windy weather. They also claim that they rang Mr Paino on the day after the damage to inform him. I find, on the basis that the applicants had written to Mr Paino in 2003 and spoken to him with the understanding that he was the owner of the property, and that he did not advise them otherwise until September 2008, their letter of February 2003 is adequate notice to the owners of the property of likely damage from the trees. I also find that any reasonable person would recognise that the dead branch that did fall in August 2005 was likely to fail and cause damage due to its size, condition and location over the applicant’s driveway. For those reasons I find that Kylor should pay compensation for repair of the damage and will make orders to that effect.

20 I note that the applicants did not complete Form D - SUPPLEMENTARY FORM – COMPENSATION but did include details of the damage on Form E - SUPPLEMENTARY FORM – DAMAGE TO PROPERTY. I also note that the applicants have not included any quotations for the cost of repair. I find however that they have provided adequate information for me to assess the claim and order compensation in a reasonable manner.

Considerations

21 Under s 12 (d) of the Act, I note that the Bangalay Gums are an Australian native species that occur naturally in the local area and are likely to contribute to the local ecosystem.

22 Under s 12 (e) of the Act, I note that the trees contribute to the scenic value of the Kylor property, the applicant’s property, and the surrounding local area.

23 Under s 12 (f) of the Act, I note that the trees provides intrinsic value through oxygen production, carbon sequestration, cooling summer shade, and deflection and dispersal of strong winds.

Conclusions

24 I have found that deadwood in the five large trees is likely to cause damage in the near future or injury to people, and I will order that Kylor remove the deadwood.

25 I have found that the remaining saplings have not caused damage, and are not likely to cause damage in the near future or injury to people, therefore I cannot make orders regarding them.

26 I have found the claim for compensation upheld and will order that Kylor pay compensation for repair of the damage to the car.

Orders

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

a. All dead wood having a diameter greater than 20 mm at its point of attachment shall be pruned from the five large trees by 28 February 2009, and at periods of no more than five years thereafter;
b. Kylor Pty Ltd shall pay the full cost of the pruning work in a. above;
c. The pruning shall be carried out by an AQF Level 3 arborist with suitable insurances, and the work shall be in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees ;
d. The applicants shall grant access over their property to carry out the pruning work and associated cleaning up;
e. The work shall take place at reasonable times, on reasonable notice, and the applicants may supervise activities on their property;
f. The applicants shall obtain three quotations for repair of the small dent in the dark blue Mazda Tribute car, which is shown in the photograph included in the application. The applicant is to have the dent repaired by 31 March, 2009 and pay the cost of that repair;
g. The applicants shall provide a copy of the three quotations and a copy of the receipt for the completed repair to Kylor Pty Ltd by 30 April 2009;
h. After receipt of the paperwork in g. above, Kylor Pty Ltd shall pay the amount of the lowest quotation to Ms Heycott by 31 May 2009.

___________________

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