Gray v Watts
[2007] NSWLEC 865
•19 December 2007
Land and Environment Court
of New South Wales
CITATION: Gray v Watts [2007] NSWLEC 865 PARTIES: APPLICANT
RESPONDENT
Paul & Penelope Gray
Edna WattsFILE NUMBER(S): 20948 of 2007 CORAM: Fakes AC KEY ISSUES: Trees (Neighbours) - Neighbour Application :- Removal of trees, damage to property, injury to persons LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 19/12/2007 EX TEMPORE JUDGMENT DATE: 19 December 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr and Mrs P & P. Gray, litigants in personRESPONDENT
No Appearance.
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESFakes AC
19 December 2007
JUDGMENT20948 of 2007 Paul & Penelope Gray v Edna Watts
1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Paul and Mrs Penelope Gray of 13 Knapp Avenue Nowra concerning 4 trees on the adjoining property owned by Mrs Edna Watts of 11 Knapp Avenue Nowra.
2 Mrs Gray was assisted by a long-term fried, Ms Kim Roberts who was familiar with the issues. The respondent did not appear despite efforts in person and by phone to contact her. Due to the lack of appearance by the respondent, the trees were viewed only from the applicants’ property.
3 The trees are one (1) Camphor Laurel sapling, one (1) mature Cupressus macrocarpa (Cypress) and two (2) mature Pinus radiata (Radiata Pine).
4 The applicants are seeking the removal of all 4 trees as they contend that the pines have caused damaged to a brick barbecue and concrete slab and that all trees could cause damage to property or injury to persons. They are also seeking compensation for a sum of up to $1507.00 – that being a quote to rebuild the barbecue on a new slab.
5 With respect to the trees, the camphor laurel is approximately 120 mm in diameter and is located within a metre of the boundary paling fence adjacent to the driveway. The tree is approximately 4m high and likely to be self-sown. At this stage, no damage to the applicants’ property by this tree was observed.
6 The Cypress overhangs the garage. The tree has a bifurcated trunk and it appears that another stem or major branch has failed from this tree into the owner’s property. The union of the remaining stems was obscured from view. There was no evidence of branch tear-outs in the canopy over-hanging the applicants’ property although the applicant did state that in the 19 years that they have lived there, several branches have come out of this tree onto their property but at this stage, no damage has occurred. The applicants are concerned that should the remaining sections of the tree fail, it will result in damage to their garage and kitchen and injury to anyone present.
7 The two mature pine trees are located at the rear boundary of the respondent’s property and are in good health. The most eastern of the two trees overhangs the applicants’ rear yard. It is clear that several moderate to quite large branches have failed from this tree onto the applicants’ property. The applicants are concerned that this will continue to happen especially when the strong westerly winds blow.
8 Under s 10.2 of the Act the Court must be satisfied that the trees have caused, are causing, or could, in the near future, cause damage to property or injury to persons.
9 Under s 12 of the Act other matters must be considered. Clause (c) is relevant in that the three mature trees do add to the scenic value of the land on which they are located and are also seen within the local neighbourhood.
10 Also relevant in s12 is clause (h)(i) which asks if there is anything other than the tree that may have contributed to the damage. The barbecue area is over 20 years old as it was there when the applicants purchased the property and so some degree of wear and tear of materials would be expected. Whilst it appears that some of the damage is likely to be attributed to the roots of the respondent’s pine trees and other vegetation, the applicants also have plants growing adjacent to this slab and structure and thus these may be contributing to the damage.
11 After viewing and considering the evidence in the light of s 10.2, the Court makes the following orders.
1. The application to remove the Camphor Laurel is dismissed as the tree has not caused any damage to the applicants’ property nor is it likely to cause damage or injury in the near future.
2. The application to remove the Cypress is dismissed as there is no evidence of damage caused by the tree or evidence of branches that may fail substantially onto the applicants’ property. Should one or both of the remaining sections of the tree fail, the weighting and direction of those sections indicate they would substantially fail into the respondent’s property.
3. The application to remove the most westerly of the two pines is dismissed as there is no evidence that any part of this tree has caused or is likely in the near future to cause damage to the applicants’ property or injury to persons. The tree is healthy and it affords a degree of wind protection to the pine closest to the applicants’ property.
4. With respect to the pine tree closest to the applicants’ property, all branches overhanging the applicants’ property are to be removed. This work is to be carried out by an AQF level 3 Arborist with appropriate insurances. The work is to be carried out in accordance with AS4373:2007 – Pruning of Amenity Trees . That person is to be engaged and paid for by the tree owner. The work is to be carried out within 90 days of the date of these orders.5. With respect to the compensation for the damage to the barbeque and slab, the applicant is to obtain 3 quotes for the replacement of the barbecue and the slab to the same general dimensions of the existing structures. The cost of the cheapest quote, which is to be no greater than $1507.00, is to be shared on a 50:50 basis by both the applicants and the respondent. The respondent is to pay their share of these costs within 21 days of the presentation of a receipt for the completed works.
___________________
J Fakes
Acting Commissioner of the Court
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