Hamilton v Byrne

[2008] NSWLEC 45

Land and Environment Court

of New South Wales

CITATION:

Hamilton v Byrne [2008] NSWLEC 45

PARTIES:

APPLICANT
Donald Hamilton

RESPONDENT
Diane Byrne

FILE NUMBER(S):

21148 of 2007

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) - Neighbour Application :- Removal and pruning of trees, compensation costs

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

17/1/2008

 
DATE OF JUDGMENT: 

17 January 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr D. Hamilton, litigant in person

RESPONDENT
Mr R. Clisdell, solicitor
of Hozack Clisdell Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

17 January 2008

21148 of 2007 Donald Hamilton v Diane Byrne

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 four trees (the trees) situated on 20 Grandview Crescent, Lugarno (the property). The property is owned by Ms Diane Byrne.

2 The trees are a large Camphor laurel, a small Camphor laurel, a small Jacaranda, and a large Gum tree (Eucalyptus sp).

3 The application has been made by Mr Donald Hamilton, owner of 15 Chivers Avenue, Lugarno, the adjoining property to the north of the trees.

4 The application seeks orders from the Court for removal of the large Camphor laurel tree and the Jacaranda, and trimming back of the small Camphor laurel tree and the Gum tree.

5 The application also seeks compensation of $2,507.60 for the combined cost of paving replacement, an arborist’s report, and printing costs in preparation of the application to the Court.

6 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.

7 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?

8 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?

9 I have examined the trees from the ground on both properties, and the flagstone path and associated area on Mr Hamilton’s property; and have reached the following conclusions with respect to them.

10 The large Camphor laurel tree, the smaller Camphor laurel tree and the gum tree appear to be in good health, stable in the ground and have good branch attachment.

11 The Jacaranda tree is growing with a large lean over Mr Hamilton’s property, and has a very lopsided canopy. This canopy is close to the roof of Mr Hamilton’s house and may touch the roof in strong winds.

12 The large Camphor laurel tree has a lopsided canopy with the majority over Mr Hamilton’s property. The canopy extends with a radius of at least 8 m over Mr Hamilton’s property. A large portion of the canopy is over the roof of Mr Hamilton’s house. A dead branch has fallen out of this tree, and there is dead wood still in the tree.

13 A flagstone path between the large Camphor laurel tree and Mr Hamilton’s house has failed with the mortar joints cracked and some general movement of the path and its low support wall towards the house.

14 A rock floater of at least 1 square metre area and 0.2 to 0.3 m thickness, located at the western corner of the house has moved upward and towards the house so that Mr Hamilton has had to chip off part of the rock to avoid contact with and damage to his house.

15 I am satisfied that the large Camphor laurel tree and the Jacaranda tree are within the jurisdiction of the Court and may cause me to order intervention if the parties could not agree on actions in relation to those trees.

16 On the general matter of shading and access to light, those matters cannot be considered because they are excluded from consideration by the Act.

17 In relation to fallen leaves, twigs and small branches, consistent with the Court’s decision in Barker v Kyriakides, it is not appropriate for the Court to order removal of the tree or significant intervention with the tree on the basis of it dropping leaves, twigs and the like on the applicant’s property.

18 In this case I am satisfied that pruning of the Large Camphor laurel tree and the Jacaranda as agreed by the parties will reduce the amount of falling leaf and twig matter to such that would not require further intervention by the Court.

19 The Court is also required to consider benefits provided by the trees in accordance with s 12 of the Act. In this regard, the trees are attractive, and the larger Camphor laurel and the Gum tree are visible from surrounding streets, adding to the general garden character of Lugarno.

20 I note that Ms Byrne wishes to retain the trees and has offered to carry out some pruning, and to pay the costs of repair of paving and rock work beside Mr Hamilton’s house, and to pay for the full cost of the common boundary fence replacement.

21 During this hearing, the parties have reached agreement about the pruning and other works that are to be done.

22 I note that having reached that agreement, Mr Hamilton no longer requires the Court to order intervention with the trees, and withdraws his claim for compensation.

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

1. The flagstone pathway at the rear of Mr Hamilton’s house shall be restored in a proper and workmanlike manner to be similar to the original, including removal of tree roots to a depth of approximately 200 mm below surface level, providing a drainage width of approximately 150 mm from the house and rebuilding the low wall as necessary. The work shall extend from the floater stone at the western corner of the house, eastwards to the solid rock about half way along the wall of the house;
2. The floater stone at the western corner of the house shall be cut back to be approximately 150 mm clear of the house;
3. The common boundary fence shall be replaced;
4. The large Camphor laurel tree shall have three branches that overhang Mr Hamilton’s property pruned as shown in the photograph annexure A, and shall be pruned of all deadwood having a diameter greater than 40 mm;
5. The Jacaranda tree shall be pruned to remove those parts that overhang the common boundary, or the tree shall be removed;
6. The smaller Camphor laurel tree shall be pruned to remove those parts that are over the common boundary up to a height of approximately 6 m above ground level, and the root visible above ground on the eastern side of Mr Hamilton’s house shall be removed back to the common boundary;
7. The work in 1, 2, 3, 4, 5, and 6 above shall be completed at Ms Byrne’s cost;
8. The construction work in 1, 2 and 3 above shall be completed by 31 July 2008;
9. The tree pruning work in 4, 5 and 6 above shall be completed by 30 April 2008, by an arborist with AQF Level 3 qualifications and appropriate insurances, and in accordance with AS 4373 – 2007 Pruning of amenity trees ;
10. The tree prunings may be removed through Mr Hamilton’s property;
11. Ms Byrne shall give Mr Hamilton at least one week notice of the works to be carried out;
12. Mr Hamilton shall permit access to his property for the purpose of the above works provided that access is on reasonable notice and at reasonable times.

___________________

Peter Thyer
Acting Commissioner of the Court