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

1. 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.

1. 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.

1. 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.

2. 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.

1. 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.

1. 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.

2. The respondents value the tree for the shade it provides and for its general amenity and are willing to undertake any actions to minimise the risk the tree may pose to their own and their neighbour’s property. However, they stated that this risk management should be based on professional advice. In this regard Mr  Macleod outlined the procedure that could be followed to selectively reduce branches that may contact Mrs Hinde’s property in strong winds including simulating branch movement by trying to drag branches towards the building. He also outlined what else should be inspected when the pruning work was being undertaken, specifically, the attachment of branches. In his opinion, the 2004 pruning resulted in the production of epicormic shoots which now require further ongoing management by the selective reduction pruning he outlined. He also reinforced the need to limit pruning so that no further epicormic growth would be stimulated. In his opinion, the actions sought by Mrs Hinde would increase the risk of branch failures.

1. Under s10.2 of the Act we must be satisfied that the tree has caused, is causing, or could, in the near future, cause damage to persons or property. Under s 12 of the Act we must consider other factors.

1. Under s12(e) we note that the tree does make a contribution to the natural landscape and scenic value on which it is situated and to the locality as the tree protrudes above the building line and is seen from the public domain and other houses.

1. Under s.12 (h) (ii) we must consider any steps taken by the applicant or the owner to prevent or rectify damage. It is clear from the evidence provided and from the on-site inspection, that the respondent has taken action to prevent further damage to the applicant’s property by having the tree pruned to the boundary and by employing arborists to provide expert advice. It is clear from the inspection that the tree no longer overhangs the roof under normal weather conditions.

1. We have inspected the tree and have found it to be a healthy specimen with no evidence of included bark or failure of live branches. The tree does have an amount of dead wood which we were informed was to be removed some months ago but was delayed as a result of this application.

1. While we accept that in gale-force conditions the tree has caused damage to Mrs Hinde’s property and that in those conditions the tree may be blown towards the house, we are satisfied that the pruning method outlined by Mr Macleod will be sufficient to minimise the risk of damage and we see no reason why an independent arborist should be engaged.

Orders

1. The Orders of the Court are:

1. The Respondent is to engage an arborist to selectively reduce the canopy of the Chinese Elm (Ulmus parvifolia) to maintain clearance from 20 Burran Avenue, Mosman, including pulling branches to simulate the movement that may occur during strong wind events. Any other branches, such as dead wood, that the arborist considers pose a risk of damage to property, should also be removed.

2. The arborist doing the work must have an AQF level 3 qualification in Arboriculture and the work must be performed to AS4373:2007.

1. The work is to be done on an annual basis with the first pruning to be carried out within 90 days of the date of these orders and is to be at the cost of the owners.

   ___________________

   Annelise Tuor

   Commissioner of the Court

   ___________________

   Judy Fakes
   Acting Commissioner of the Court