Hunt v Bedford

[2007] NSWLEC 130

Land and Environment Court

of New South Wales

CITATION:	Hunt v Bedford [2007] NSWLEC 130
PARTIES:	APPLICANT Mark Hunt RESPONDENTS Greg & Kathy Bedford
FILE NUMBER(S):	20079 of 2007
CORAM:	Moore C - Fakes AC
KEY ISSUES:	Discretion - Trees (Neighbours) :- Minor impact of trees Insufficient risk of damage
DATES OF HEARING:	15 March 2007
EX TEMPORE JUDGMENT DATE:	15 March 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENTS in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

15 March 2007

07/20079 Mark Hunt v Greg & Kathy Bedford

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 THE COMMISSIONERS: This a decision on an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning two trees located at 84 Yala Rd, Bangor (the property).

2 Mr Bedford, the owner of the property has attended the hearing with his wife as have Mr and Mrs Hunt, the applicants in the proceedings, who reside at 82 Yala Rd.

3 We have had the opportunity of inspecting the two trees which are in contention from both properties and to hear from Mr Hunt and from Mr Bedford with respect to each of them

4 It is appropriate, given that the trees are separately located (one being in the front of the property and the other to rear) that we deal with them separately.

5 The issues with respect to the tree at the front, relate to the concerns that Mr and Mrs Hunt have of about the dropping of leaves and other material from the tree onto their boat and their car parked in the driveway of their home – immediately adjacent to and under the leaf canopy of part of the tree in question.

6 On the inspection, Fakes AC, with her technical expertise, concluded that this tree is in a sound condition and is a healthy specimen (and, to my untutored inspection, this appears to be the case).

7 The same cannot be said about tree in contention at the rear of the property as it is obviously significantly stressed and damaged.

8 There are a variety of possible causes for that to have occurred – including significant degrees of hard stand construction in the vicinity of the root zone as part of the garage structure on the property immediately adjacent and on another street frontage and a degree of paving and rock landscaping on the property.

9 There is also the possibility other forms of human intervention raised by Mr Bedford and these cannot be entirely discounted but are not relevant in this application.

10 The damage that is raised as a matter of concern in respect to this tree is the dropping of leaves and the likelihood of the fall of dead limbs onto the Hunt property.

11 Fakes AC, with her technical expertise, concluded that there is no immediate risk of significant limb drop from this tree.

12 Mr and Mrs Hunt seek the making of an order that all relevant branches be trimmed back to the boundary of the property and that that occur at Mr and Mrs Bedford's expense.

13 Given the state of health of the first tree, Mr and Mrs Bedford resist the making of any order. Mr and Mrs Bedford also resist the making of any order with respect to the rear tree as they say it is not necessary.

14 The Act sets out matters that the Court must be satisfied about before it can exercise its jurisdiction under the Act.

15 Before we could turn to address a series of matters that are enumerated in s 12 as requiring consideration by the Court, there are four matters that are required to be considered pursuant to s 10. Two of them are mandatory and two arise depending on the nature of the claim that is made by the applicant in any proceedings

16 The first of those is that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated. In these proceedings, we asked the parties whether there had been such discussions and were informed that there were no such discussions.

17 We then adjourned the matter for a short period of time to enable such discussions to occur.

18 When we returned to the property, we were advised that the parties were unable to reach agreement.

19 We were satisfied, therefore, that the provisions of the Act had thus been met.

20 The Hunts seek an order that it is founded on both of the bases in s 10(2)(a) that the trees concerned of the were causing or are likely to cause, in the near future, damage to their property or are likely to cause injury to a person. Those tests have to be satisfied to our satisfaction before we move on to consider the other matters such as questions of discretion.

21 The scope of the damage likely to be occasioned (if it is to be occasioned) is a matter that the Court is obliged to consider on whether or not it should invoke the jurisdiction of the Act to make orders pursuant to s 9.

22 These neighbouring properties are both located in an environmental protection zone and are in an urban bushland setting and in a significantly vegetated locality.

23 The nature of the damage that is complained of by Mr and Mrs Hunt is, in our opinion, likely to be the ordinary sort of interaction that would be expected on such a location or in such a zone between one property and the trees of a neighbouring property

24 We are not satisfied that there is sufficient likelihood of any real or sufficient degree of damage, past or future, to Mr and Mrs Hunt's property or any aspect of their personal property (such as the vehicle and boat being parked on the property) as would warrant the invocation of the Court's jurisdiction in this matter with respect to the tree at the front of the property.

25 A similar conclusion has been drawn by us with respect of the lack of likelihood of cause of injury to any person as a result of this tree being where it is.

26 The same position applies with respect to the tree at the rear notwithstanding its current poor health..

27 As a consequence, we are not prepared to make any order in these proceedings and the application is dismissed.

28 In saying this, we are in no way derogating from any right that Mr and Mrs Hunt might have, at general law, to trim any of the branches that are of concern to them to the boundary of their property with Bedford property at their own expense.

Judy Fakes

Commissioner of the Court Acting Commissioner of the Court