Hinde v Anderson - [2007] NSWLEC 847

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Hinde v Anderson [2007] NSWLEC 847

PARTIES:
APPLICANT
Judith Hinde

RESPONDENT
Sidney and Lynn Anderson

FILE NUMBER(S): 21014 of 2007

CATCHWORDS: Trees (Neighbours) :- tree overhanging adjoining property,
damage to property.

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

CORAM: Tuor CFakes AC

DATES OF HEARING: 18/12/2007

EX TEMPORE DATE: 18 December 2007

LEGAL REPRESENTATIVES

APPLICANT
In person

RESPONDENT
Mr P Murray, Solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Fakes AC
Tuor C
18 December 2007
21014 of 2007 Judith Hinde v Sidney & Lynn Anderson

JUDGMENT

This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mrs Judith Hinde of 20 Burran Avenue, Mosman, concerning a Chinese Elm (Ulmus parvifolia) located on a property owned by Mr and Mrs Anderson at 22 Burran Avenue, Mosman.

In attendance for the applicant were Mr Richard Smythe, town planner, and Mr Stuart Pittendrigh, arborist. The respondent was represented by Mr Peter Murray, Solicitor. Mr Jeremy Crawford and Mr Bruce Macleod, both arborists, gave evidence to the Court for the respondent.

The tree was viewed from both properties and from the street. From the applicant’s property, the tree was viewed from several locations both inside and outside.
The applicant is concerned that during strong wind events branches have broken from the tree and have caused damage to roof tiles resulting in internal leaks. The applicant is concerned that this will continue to happen.

Mrs Hinde told the Court that in 2004, some minor damage, being two broken tiles, was caused by a fallen branch from the Chinese Elm. After notifying the owners of the tree, some pruning was undertaken. In July 2006, a violent storm resulted in further damage to the roof on the other side of her house to the tree. After this, permission was given by Mosman Council to prune the tree by up to 10%. This work was undertaken by Mr Crawford who removed epicormic growth and other branches back to the boundary line. This was substantially less than 10% but in his professional opinion was enough to minimise the risk posed by the tree to Mrs Hinde’s property and that to prune to 10% would have led to the production of more epicormic shoots which are more likely to fail. Mr Crawford’s decision was also based on the lack of evidence of any torn out branches.

The applicant is seeking the pruning of the tree to a point at least 1.5 m within the respondents’ property and the reduction of the canopy to the level of her eaves. Mr Pittendrigh supported a reduction of the canopy to a point where, in strong winds, no branch can contact any part of Mrs Hinde’s property. The applicant also seeks the employment of an independent arborist to do this work.
The respondents value the tree for the shade it provides and for its general amenity and are willing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hinde v Anderson

Details

AGLC: Hinde v Anderson [2007] NSWLEC 847
Case: [2007] NSWLEC 847
Decision Date: 18 December 2007

CaseChat Overview and Summary

In the matter of Hinde v Anderson, the applicant, Judith Hinde, sought an order under the Trees (Disputes Between Neighbours) Act 2006, to have a Chinese Elm tree, located on the property of the respondents, Sidney and Lynn Anderson, pruned to a certain extent to prevent damage to her property. The application arose from the concern that branches from the tree had fallen onto her property, causing damage on two separate occasions. The case was heard by Tuor C and Fakes AC in the Land and Environment Court of New South Wales.

The legal issues before the court were whether the tree had caused, was causing, or was likely to cause damage to the applicant's property, and if so, what action should be taken to mitigate such risks. The court was required to consider factors such as the contribution of the tree to the natural landscape, scenic value, and any steps taken by the parties to prevent or rectify damage. Additionally, the court had to weigh the respondents' arguments that further pruning could lead to increased risk of branch failure.

The court found that the tree had indeed caused damage to the applicant's property in severe weather conditions and acknowledged the respondents' efforts to mitigate the risks by pruning the tree and seeking expert advice. The court concluded that the proposed pruning method outlined by the respondents' expert witness would be sufficient to minimize the risk of damage. It was determined that engaging an independent arborist was unnecessary as the respondents' arborist had provided sufficient expertise. The court ordered that the respondents engage an arborist to selectively prune the tree annually to maintain clearance from the applicant's property, with the first pruning to be completed within 90 days of the order.

The final orders of the court were that the respondents engage an arborist with the required qualifications to prune the Chinese Elm tree to maintain clearance from the applicant's property. The pruning should include simulating branch movement during strong wind events and removing any other branches that pose a risk of damage. The work must adhere to AS4373:2007 and be performed annually, with the first pruning to occur within 90 days of the date of the orders. The cost of the work is to be borne by the respondents.

Orders