Joel v Benton

[2008] NSWLEC 1198

Land and Environment Court

of New South Wales

CITATION:

Joel v Benton [2008] NSWLEC 1198

PARTIES:

APPLICANT
Ivy Joel

RESPONDENT
Mr & Mrs Benton

FILE NUMBER(S):

20123 of 2008

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Removal of trees, damage to property, injury to persons

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

15/05/2008

EX TEMPORE JUDGMENT DATE:

15 May 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ivy Joel, litigant in person

RESPONDENT
Mr & Mrs Benton, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

15 May 2008

20123 of 2008 Ivy Joel v Mr & Mrs Benton

JUDGMENT

The decision was given at the hearing on 15 May 2008.
This written judgment reflects the background information and the findings.

1 ACTING COMMISSIONER: The Bentons retained two scribbly Gum trees when they cleared their land for building 18 years ago, to provide shade from the western summer sun and to encourage native birds and wildlife to their garden. The two trees stand at their western boundary, and have been pruned over the years so that part of their trunks but almost no leaves or branches extend over the boundary. The Bentons say that the trees have been maintained to the satisfaction of the past and present owners, and were of their present height and form when Mrs Joel bought her property about 10 years ago. They had the trees inspected recently by a consulting arborist who concluded that the trees are in average health and structural condition and are retainable for more than 10 years.

2 Mrs Joel wants the two trees removed. She says they have been condemned by Baulkham Hills Council and are required to be removed. She is very worried that if the trees fall they will destroy her home, and are a great danger to her person. Mrs Joel also reports that one of the trees is pushing on the fence making it lean over, but she does not want the fence cut to make space for the tree trunk

3 The Scribbly Gum trees (Eucalyptus haemastoma) are located on the western side of the Bentons’ property at 214 Ridgecrop Drive, Castle Hill, near the common boundary with Mrs Joel’s property at 212 Ridgecrop Drive, Castle Hill.

4 The more southerly tree, Tree 1 is beside the rumpus room of Mrs Joel’s house. This tree is described by the Benton’s arborist Mr Smith as being 12.5 m in height, having a stem diameter of 550 mm at 1.4 m above ground, an asymmetrical canopy towards the east (over the Bentons’ property), and average to good health and vitality. The arborist recorded a small cavity on the root crown and a cambium canker on the main trunk. He did not observe decay or deterioration of wood tissue, nor any significant defects.

5 The northern tree, Tree 2 is beside Mrs Joel’s roofed pergola and spa pool. That tree is comprised of two separate trunks arising from ground level. These are described by Mr Smith as being 10.5 m in height, having stem diameters of 300 and 350 mm at 1.4 m above ground, and average to good health and vitality. The arborist recorded a minor cambium canker on the southern trunk, and a minor cavity on the root crown of the northern trunk. He did not observe decay or deterioration of wood tissue, nor any significant defects.

6 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree.

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?

7 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?

The issues

8 The issues in this case are:

• Have the trees caused damage to Mrs Joel’s property ?
• Are the trees now causing damage to Mrs Joel’s property ?
• Does Baulkham Hills Council require the trees to be removed ?
• Are the trees likely in the near future to cause damage to Mrs Joel’s property ?
• Are the trees likely to cause injury ?

Have the trees caused damage ?

9 Mrs Joel reports that tree debris in her gutters caused her rumpus room to flood causing damage to her piano and floor rugs.

10 I observed that the tree does not overhang Mrs Joel’s house, and was informed that it had been pruned in the past to keep it from overhanging. I observed that the tree does not have a large canopy, and that it is unlikely to drop a lot of debris. On this basis I find that similar to the determination in Barker v Kyriakides, Mrs Joel has a responsibility to keep her gutters clean to avoid blockage and flooding.

11 Mrs Joel also reports that a branch from Tree 2 broke and damaged the roof over her spa pool. She claimed the cost of damages on her insurance. The parties agree that the branch fell in a wild wind storm about two years ago. It had broken off a short distance out from the trunk. On this basis I am satisfied that the branch junction to the trunk was strong and there is no indication that other branches will fail.

Are the trees causing damage ?

12 Mrs Joel reports that the trees are breaking down the dividing fence.

13 I did not observe any damage to the fence beside Tree 1 but the fence beside Tree 2 has been pushed out of alignment. Mr Benton advised that the fence was on his property and Mrs Joel’s recent survey confirmed that the fence is 0.25 m within the Benton’s property. On this basis it seems that the fence belongs to the Bentons and has not been pushed over the boundary by the trees. Therefore I find that the trees are not causing damage to Mrs Joel’s property.

Does Baulkham Hills Council require the trees to be removed?

14 The Bentons had four trees inspected by Council in December 2007. Council issued approval for removal of the trees “as they show evidence of decay which may affect the structural integrity of the tree.”

15 I noted the discrepancy of the wording in Council’s letter, with that quoted elsewhere in the Bentons’ submission that Tree 1 was described by the Council tree inspector as “healthy, with some scarring on the trunk, possibly caused by cockatoos picking at the bark, it had a small hollowing at the base, compensated for by a widening of the base.” Mr Benton acknowledged the discrepancy but held that he had quoted what the inspector said at the inspection.

16 The Bentons subsequently had Trees 1 & 2 inspected by Mr Smith an arborist with AQF level 5 qualifications. His report concludes that “The subject trees are in average health and structural condition and are retainable for more than 10 years, assuming reasonable maintenance.”

17 The information sheet from Baulkham Hills Council states that Council’s powers to compel a landowner to remove a tree are limited to circumstances where it is demonstrated by suitable expert evidence that the tree represents an unacceptable danger.

18 The report by Mr Smith would seem to be sufficient evidence that the trees do not present an unacceptable danger, and therefore would not be required by Baulkham Hills Council to be removed.

Are the trees likely to cause damage ?

19 Both parties acknowledge that the trees did not lose any branches or cause any damage during the recent wild storm that went through Castle Hill on 12 December 2007.

20 Mr Benton also advised that recognising the conclusions of Mr Smith’s report, he would carry out reasonable maintenance on the trees in the future.

21 On the basis of the observed lack of damage to the trees during the recent storm, and Mr Benton’s commitment to maintain the trees, it seems unlikely that the trees will cause damage in the near future.

Are the trees likely to cause injury ?

22 For the reasons stated above that the trees are unlikely to cause damage in the near future, I find that the trees are also unlikely to cause injury.

Conclusion

23 The trees were retained by the Bentons to provide summer shade, and to reduce wind and glare. I observed that their position on the property would make them effective for those purposes. I also observed as stated by the Bentons that the trees contribute to the natural landscape and scenery of the area, are a focal point of their garden, and contribute to the natural environment and character of the Hills Shire.

24 As the trees are not now causing damage to Mrs Joel’s property and are unlikely to cause either damage to her property in the near future or injury to any person, I find that there is no reason for me to order removal or interference with the trees.

Orders

25 The orders of the Court are that the application is dismissed.

___________________

Peter Thyer
Acting Commissioner of the Court