Hampson v Atherton

[2009] NSWLEC 1251

Land and Environment Court

of New South Wales

CITATION:

Hampson v Atherton [2009] NSWLEC 1251

PARTIES:

APPLICANT
Hampson, Steven & Anor

RESPONDENT
Atherton, Mark & Anor

FILE NUMBER(S):

20315 of 2009

CORAM:

Fakes AC

KEY ISSUES:

TREES (NEIGHBOURS) :- removal of tree; damage to property; risk of injury to persons.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

13 July 2009

EX TEMPORE JUDGMENT DATE:

13 July 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Hampson (Litigant in Person)

RESPONDENT
Mr M Atherton (Litigant in Person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

13 July 2009

20315 of 2009 Steven and Caryn Hampson v Mark and Anne Atherton

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 made by Steven and Caryn Hampton of 19 Ashdown Drive Port Macquarie against a tree located on a property owned by Mark and Anne Atherton at 13 Ashdown Drive. The Atherton’s property is presently tenanted.

2 Port Macquarie-Hastings Council was represented at the on site hearing by Mr Lindsay Field, Tree Management Officer.

3 The applicants are seeking the removal of the tree, a mature Eucalyptus tereticornis (Forest Red Gum) as they contend that it has caused damage to their property and may continue to do so and that it may cause injury to people. The respondents do not want to remove the tree.

4 Specifically, the applicants are concerned that roots from the tree have entered their property and could cause damage to a timber retaining wall, the footings of their house and to the storm water pipes. They also contend that debris from the tree has built up at the base of the tree behind the timber dividing fence and has caused the collapse of the fence. Mr Hampson is also concerned about the action of roots on the fence and the possibility of termite damage.

5 The application discusses damage to the concrete slab footing of a garden shed. However, this shed is located on land not subject to this application.

6 With respect to injury to persons, Mr Hampson stated that deadwood to about 40 mm in diameter has fallen from the tree into their garden. He also mentioned bird droppings on the clothesline that is located beneath the tree.

7 The tree is a mature Forest Red Gum and is likely to be a remnant of the original vegetation. It is located in the rear south/south-western corner of the respondents’ property within 500 mm of the boundary fence. It is approximately 18-20 m tall and is in average condition. There is a significant amount of relatively small diameter deadwood distributed evenly throughout the canopy. This is consistent with its age and the impacts of development.

8 As requested by Council, the respondents engaged an AQF level 5 arborist to inspect and report on the tree. The arborist, John Kennedy of JKL Consultants noted the deadwood, some bird damage to some of the main branches, a crossing branch, a small basal wound and epicormic growth. These features were noted at the on site hearing.

9 Based on the extensive pruning recommended in that report, Port Macquarie-Hastings Council granted permission for the removal of the tree. As stated in paragraph 3, the respondents are not happy for the tree to be removed.

10 Several small diameter roots were seen within the applicants’ property. One was in the lawn about a metre or so from the steps at the rear of the house, another was projecting from the base of the timber retaining wall, and another was seen in a garden bed close to the tree. Whilst they were visible, they appeared to have caused no damage.

11 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants’ property or injury to persons. In Yang v Scerri [2007] NSWLEC 592 a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

12 The Court must also consider matters under section 12 of the Act. The relevant clauses in this case are:

(a) The tree is wholly located on the respondents’ land.
(d) The tree makes a contribution to the local ecosystem and to biodiversity as it is a remnant of the original vegetation and is a koala browse species; koalas are found in the Port Macquarie area.
(e) The tree makes a contribution to the scenic value of the land on which it is located.
(f) It has some value to public amenity as it is visible from surrounding properties and local roads.
(h &i) (i) Anything other than the tree that may contribute to the damage. The paling fence is approximately 17 years old. The cross members are degraded and the upper sections of the palings are detached. There is only one panel between the applicants’ and the respondents’ property and the end post is essentially free standing as it does not extend across the extent of the property. It is currently propped. The adjoining panel between the applicants’ property and another neighbour is in a similarly dilapidated condition. There was some discussion at the on-site hearing that the fence was to be replaced by all common owners about 5 years ago but that did not happen.
(ii) The respondents sought the opinion of an appropriately qualified arborist.
(j) The tree was well-established prior to the construction of the applicants’ house some 20 years ago.

13 Coming back to section 10(2), at least one of the four tests in that section must be satisfied for the Court to make an order for any intervention with the tree.

14 Whilst roots may have encroached onto the applicants’ property, they have not caused any damage to the retaining wall, the house, storm water pipes or any other property and nor are they likely to do so in the near future. The Act does not apply to birds or termites.

15 The age and the nature of the fence are the primary reasons for its dilapidated condition however, the build up of bark may have contributed in some very minor way.

16 In the 20 years that the applicants have lived on their property there has been no injury to persons. However, the amount of deadwood in the tree is of some concern. In my opinion, the crossing branches and other features noted by the respondents’ arborist present no imminent threat to property or persons.

17 As the tree has not caused significant damage to the applicants’ property, nor is it likely to in the near future but the quantity of deadwood poses some potential risk of injury to persons, the orders of the Court are:

1) The application to remove the tree is refused.
2) The respondents are to engage a fully insured AQF level 3 arborist to remove all deadwood > 30 mm in diameter from the canopy. This work must comply with AS4373:2007 Pruning of Amenity Trees and is to be carried out within 60 days of the date of these orders. The work is to be organised and paid for by the respondents. The applicants are to provide all reasonable access for any work to be done as long as 3 working days notice is given. The respondents’ tenant must also be given the same notice.

___________________

J Fakes
Acting Commissioner of the Court