Lardner v Bishop
[2011] NSWLEC 1149
•20 May 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Lardner v Bishop [2011] NSWLEC 1149 Hearing dates: 4 May 2011 Decision date: 20 May 2011 Jurisdiction: Class 2 Before: Hewett AC Decision: Orders to prune a tree
Claims for compensation dismissed
Catchwords: TREES [NEIGHBOURS] - damage to property; injury to persons Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Mr D Lardner (Applicant)
Mr I Bishop (Respondent)
Ms N Sundgvist (Respondent)Representation: Mr D Lardner (Applicant in person)
Mr I Bishop (Respondent in person)
Ms N Sundgvist (Respondent in person)
File Number(s): 20061 of 2011
Judgment
COMMISSIONER: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Narara against the owners of a tree growing on an adjoining property.
The applicant alleges that the tree has caused damage to his property and that it presents a risk of injury to persons using his swimming pool and rear garden. He seeks orders for the removal of dead wood, the trimming back of overhanging branches and a reduction in the height the tree growing on the adjoining property to the northeast. He also seeks orders for the payment of compensation for the repair of his pool, the replacement of a garden shed and the replacement of his rear boundary fence. Finally, he seeks compensation for expenses incurred in the lodgement of his Court application.
I informed both parties at the commencement of the hearing that Commissioners are not authorised to make orders as to costs and therefore that element of the applicants claim for compensation is dismissed.
The applicant's property damage claim contains three elements. The first concerns a tear in the plastic liner in his aboveground swimming pool. He alleges that a dead branch fell from the respondents' tree into the swimming pool and subsequently tore the plastic liner at the base of the pool.
The second element concerns a steel garden shed situated adjacent to the pool decking and close to the rear boundary of the property. The applicant alleges that falling dead branches from the respondents' tree have damaged the shed roof causing it to leak and causing indentations in the roof surface.
The third element concerns the shared rear boundary fence that the applicant alleges was damaged by falling dead wood from the respondents' tree in 2007. He also alleges that roots from the respondents' tree are further undermining the fence.
The Tree
The tree is a Sydney Bluegum ( Eucalyptus salinga ) situated near the southwestern corner the of the respondents' rear garden. The closest point of the trunk is about 1.5 m from the boundary fence shared with the applicant's property.
The tree has been the subject of two separate arborist assessments, firstly in 2005 by Kookaburra Forestry Services, and secondly in 2008 by Advanced Treescape Consulting. Both reports were tendered in the respondents' bundle.
The 2005 report described the Bluegum as 20 m in height with a trunk diameter at breast height of 100 cm. The report described the tree as in excellent health and good condition. The extent of crown spread was reported as follows - north 12 m; south 9 m; east 9 m; west 10 m. The report recommended periodic minor pruning of dead wood once every 2-3 years.
The 2008 report described the Bluegum as 27 m in height with a trunk diameter at breast height of 850 mm. It would appear from the metrics in these two reports that over a three-year period the tree increased in height by 7 m whilst the trunk diameter decreased by 15 cm. The report also described the tree as in excellent condition and stated that it " poses an acceptable level of risk". The extent of crown spread was reported as follows - north 11 m; south 1 m; east 11 m; west 12 m. The report makes recommendations for an aerial inspection and the removal of 5-6 pieces of dead wood in the upper crown.
I note that the crown dimensions as reported in 2005 and later in 2008 are essentially similar, except for the crown dimension to the south, that is, as would extend across the applicant's property. The extent of the southerly crown spread in 2005 was reported to be 9 m whereas in 2008 it was reported to be 1 m. In light of my own observations at the hearing and given that the tree is slightly more than 1 m from the boundary fence, I am satisfied that from mid 2008 to the present the tree has not been directly overhanging the applicant's garden, swimming pool or shed.
On 21 February 2008, the respondents received a quote from Ashbourne Tree Services for the removal of a Nicholi gum from the rear of their property, this being one of two trees about which the applicant had expressed his concerns to the respondents on a number of occasions.
The respondents wrote to the applicant on 15 July 2008 offering to provide him with a copy of the 2008 Advanced Treescape Consulting report. They also advised him that they had lodged an application with Gosford Council for the removal of the Nicholi gum. Consent was granted on 18 July 2008 for the removal of the Nicholi gum and the pruning of two lower limbs from the Bluegum although the actual branches were not specified in the consent.
At the onsite hearing I inspected the tree from the applicant's land and from the respondents' land. I did not measure the tree height or its trunk diameter, however despite notable variations in the reported height and trunk metrics, I accept that the tree height exceeds 20 m and the trunk diameter is approximately 1 m. On my viewing from ground level the tree appeared healthy and structurally sound. A lower scaffold branch on the northern side of the trunk contained a relatively large dead branch and I estimated the tree contained considerably less than 5% dead wood. From various ground level vantage points I observed that the branch unions appeared sound. I noted there was little if any foliage overhanging the applicants land and none that could be seen to overhang the swimming pool or his garden shed. The previously overhanging branches were removed when the applicant had the tree pruned in 2007 with the consent of the respondents, and the 2008 crown dimensions mentioned above confirm this.
The respondents say that they value the tree for its amenity and contribution to the local environment and that the presence of the tree was a factor in deciding to purchase their property. They say that they have responded to the applicant's complaints about the safety of the tree and the overhanging foliage. I am satisfied from the evidence before me that the respondents have taken reasonable and appropriate steps to address the concerns of the applicant with respect to the condition of the Bluegum growing on their land.
Issues - property damage
I turn now to the applicant's claims concerning property damage. The first relates to the aboveground pool that is situated on the western side of his rear garden and some 5-6 m in from the rear boundary. The applicant alleges that at some time in the early morning of 8 April 2010, what he describes as a projectile branch fell from the respondents' tree into the pool. He says the branch was carried in an anti-clockwise direction by the pump circulating system and subsequently tore the plastic liner at the base of the pool. The applicant's evidence includes nine photographs of which two are purported to show the branch and the damaged pool liner. Both photographs are significantly out of focus, one is not dated and the other bears the date of April 2010. As a result of the lack of clarity in these two photographs and the lack of any indication of relationship to the actual pool in question, I am not satisfied that they adequately represent the alleged circumstances.
At the hearing the applicant stated that the immediate area is exposed to what he described as tremendous winds from the prevailing northeast direction and that when these winds prevail, dead branches from the respondents' tree are regularly shed onto his rear garden and pool.
The applicant stated that the swimming pool was constructed at some time in the 1990s prior to his occupation of the property. When he took occupancy of the property he says the pool was in poor condition with the liner faded and needing replacement. In 2000 he says he installed a new plastic liner and generally upgraded the pool, the decking and the surrounds. He said that no further works had been undertaken on the pool since then. I conclude from this that the pool liner allegedly damaged on 8 April 2010 was at that time some ten years old and therefore likely to be past its effective service life.
The respondents' dispute the applicant's claim. Their evidence included a computer printout of weather details for the month of April 2010 from the Bureau of Meteorology station at Narara. The respondents contend that the data shows that the wind at 3 pm on 7 April 2010 was from the NNW at 6 kph, and at 9 am the next day being 8 April, around the time of the alleged branch damage, the wind speed was recorded as calm. A maximum gust of 33 kph on that day occurred at 11.46 am and arrived from the west - that is, it blew from the direction of the pool toward the tree and the respondents' property.
In its essence the applicant's proposition is that a dead branch from the respondents' tree was carried against the wind or alternatively under calm conditions, some 6 or more metres before falling into the swimming pool. I am not persuaded to accept that proposition and therefore I cannot conclude that the respondents' tree is a cause of the alleged damage to the applicant's pool. As a result of the foregoing, and having regard for s 10(2) of the Act, the Court cannot make orders with respect to this element of the application and the claim for compensation for repair of the pool is dismissed.
Turning now to the garden shed. I was shown some dead branches on the gabled roof of the shed and some indentations in the roof surface. The dead branches were some 30-35 mm in diameter and sufficiently large to cause such indentations in the roof if falling from a moderate height. The shed stands at the rear of the garden and close to the rear boundary and thus the tree. As a result, the shed is likely in my opinion to be struck by falling dead branches dislodged under strong prevailing NE winds.
The applicant says the steel garden shed was erected in about 1998. The lip of the northern edge of the gable roof is no longer fully attached and the steel structure is rusted in parts and the whole structure appears to be approaching the end of its serviceable life. I went inside the shed and asked the applicant to show me where the roof was leaking. He was unable to point to any such leak but he pressed the point that the shed did leak as a result of the roof irregularities.
I am satisfied that the indentations in the shed roof were caused by falling branches from the respondents' tree and therefore as one of the tests in s 10(2) of the Act is met, the Court's jurisdiction is enlivened and orders can be made. However, I am not persuaded that the roof indentations are the cause of water ingress, nor of such consequence as to necessitate the replacement of the shed. Neither am I persuaded that the shed roof needs to be replaced. As a result of the foregoing, the claim for compensation for replacement of the shed is dismissed.
I turn now to the matter of the timber fence. The applicant claims falling branches and undermining roots have caused substantial misalignment and subsidence of the fence. The fence comprises 6 or 7 panels with the horizontal joists located on the applicant's side of the fence. The applicant contends that a panel failure in 2009 was due to a branch falling from the respondents' tree. The respondents dispute this, saying that the panel on the western end of the fence failed in January 2009 as a result of degraded joists supporting the panel and palings. In my opinion, the photographs in the applicant's evidence and those in the respondents' evidence suggest the more likely cause to be a failure of the horizontal joists leading to the collapse of the entire panel. At the hearing I observed the decayed and dilapidated condition of the fence joists and therefore I am not persuaded to accept the applicant's proposition that the tree caused the fence to fail.
The second matter concerning the fence is the applicant's allegation that undermining roots have caused the eastern panels of the fence to bow and lean into the respondents' land. I could not see any evidence to support the contention that the lean was caused by tree roots and I asked the applicant if he could show me any such evidence. He referred me to his fencing contractors quotation dated 13 January 2011 as submitted in his evidence. In his quotation the contractor expressed an opinion that the fence needed replacement "due to undermining root and falling branch damage from gum tree". In view of my own observations of the decayed and dilapidated condition of the fence, and of the evidence before me, I am not persuaded to give the contractors unsubstantiated opinion any weight in this matter.
In view of the foregoing, I am not satisfied that the respondents' tree has caused, is causing, or is likely in the near future to cause damage to the boundary fence and therefore as the Courts jurisdiction is not enlivened, the application for compensation for the replacement of the fence is dismissed.
Issues - injuries sustained and risk of injury
Finally, I turn to the matter of injuries said to be sustained by the applicant and the risk of injury to persons.
The applicant alleges that in September 2005 he sustained a head injury as a result of being struck by a piece of falling dead wood from the respondents' tree. He submits in evidence a letter dated 27 March 2011 from Dr Singh-Panwar of the Wyoming Medical Centre certifying that according to the surgery notes, the applicant attended the surgery on 18 September 2005 for a laceration to his scalp. There is no corresponding statement in evidence as to the cause of this laceration and therefore I am not persuaded to accept the allegation.
The applicant contends that the tree is likely to cause injury to persons using his rear garden as a result of falling dead wood, especially during times of strong NE winds.
I am satisfied from the evidence before me that concern at the risk of dead wood falling from the respondents' tree under strong NE wind conditions is a reasonable concern and that persons within the applicant's rear garden and swimming pool area would be at risk of injury in such circumstances. I therefore propose making orders in this regard.
Matters for consideration
Before determining an application made under Part 2 of the Act, the Court is to consider a number of matters listed under s 12. The relevant matters in this case are as follows:
(d) the tree is a remnant of the original open forest and as such it makes an important contribution to the local ecosystem and biodiversity.
(e) as a result of its large size and therefore its prominence in the landscape the tree contributes to the natural landscape and scenic value of the land on which it is situated and also to the locality.
(h) (i) the dilapidated and decaying condition of the boundary fence is the principle factor contributing to the failure of the fence
(h) (ii) the owner of the land on which the tree is situated has taken reasonable and responsible steps to prevent damage and injury by having the tree assessed by qualified arborists, undertaking dead wood pruning.
(i) (ii) the applicant had all overhanging branches pruned from the tree in 2007 and the respondent undertook further pruning of dead wood on two subsequent occasions.
As a result of all of the foregoing the orders of the Court are:
(1) The application for compensation in its entirety is dismissed.
(2) The respondent is to engage and pay for an AQF level 3 arborist with appropriate insurance, to remove all dead wood down to 25 mm in diameter from the Bluegum tree in his rear garden.
(3) This work is to be carried out in accordance with AS4373 Pruning of Amenity Trees and the NSW WorkCover Code of Practice for the Amenity Tree Industry.
(4) The work in (2) is to be completed within 30 days of the date of these orders.
(5) The applicant is to provide all reasonable access, should it be required, as long as 3 working days notice is provided.
(6) Order 2 is to be carried annually two weeks either side of the anniversary of the first pruning.
Phil Hewett
Acting Commissioner of the Court
Decision last updated: 08 June 2011
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