Lo v Hepworth

[2009] NSWLEC 1382

Land and Environment Court

of New South Wales

CITATION:

Lo v Hepworth [2009] NSWLEC 1382

PARTIES:

APPLICANT
Stephen and Diana Lo

RESPONDENT
Edna Hepworth

FILE NUMBER(S):

20685 of 2009

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :-

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006
Trees (Disputes Between Neighbours) Regulation 2007

CASES CITED:

Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

16 November 2009

EX TEMPORE JUDGMENT DATE:

16 November 2009

LEGAL REPRESENTATIVES:

APPLICANT
Stephen and Diana Low (litigant in person)

RESPONDENT
Ingrid Cattey (agent)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

16 November 2009

20685 of 2009 Stephen and Diana Lo v Edna Hepworth

JUDGMENT

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

1 COMMISSIONER: This is an application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Lo of 4A Balmoral Street Waitara against the owner of trees growing at 7 Myra Street Wahroonga. The owner of that property is Mrs Edna Hepworth. Mrs Hepworth was represented by her daughter Mrs Ingrid Cattley who also resides at this address.

2 The applicants are seeking the pruning of overhanging branches, especially dead wood, from four Camphor Laurels and one Pittosporum, to branch collars nearest the fence line and that the pruning be maintained. They are also seeking the removal of bamboo to a distance of 3 m from their fence line and for this clearance to be maintained. The Los are asking for compensation of the sum of $100 that being the excess on their insurance policy paid by them when a branch from one of the Camphor Laurels damaged their clothesline. The payment of the compensation is not disputed by the respondent.

3 The applicants are seeking these works as they contend that the trees pose a risk of damage to their property and injury to persons as their courtyard and utility area are in close proximity to these trees. I observed a collection of dead wood that the Los stated had fallen from the trees as well as a number of photographs of the damaged clothesline.

4 The trees are four Cinnamomum camphora (Camphor Laurel) and one Pittosporum undulatum (Native Daphne) growing along the rear northern boundary of the respondent’s property. Under s10(2) of the Act, the Court must not make an order unless it is satisfied that any of the trees has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is a risk of injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. That said, the tests must be applied to each tree.

5 The trees were inspected from both properties and binoculars were used to view the upper canopies.

6 Trees 1 to 4 are mature Camphor Laurels planted approximately 1.5 m from the boundary fence. They are approximately 16-18 m tall and in average condition for mature trees of this species.

7 In early 2004, Mr Lo stated that they approached Mrs Hepworth about the overhanging branches. She gave the Los permission to prune the overhanging branches. The Los engaged someone to do the work and this person lopped the trees back to the fence line and not to branch collars.

8 The result some five years later is that the remaining stubs are dead or nearly dead and there are epicormic shoots growing off the remaining exposed stems. I was shown photographs of branches that resembled epicormic shoots that had fallen into the applicants’ garden. The respondent was concerned that they had not been notified of these failures. The applicants stated that they had put them back over the fence.

9 Apart from the large dead stubs and lopped stems, there is a small percentage of dead wood high in the canopies of the Camphor Laurels.

10 Tree 5 is a Pittosporum undulatum planted or self-sown about 500 mm from the fence. The applicants are less concerned about this tree as it overhangs a section of their garden not frequently accessed. There is some dead wood in this tree that is quite decayed.

11 With respect to the bamboo, s4 of the Trees (Disputes Between Neighbours) Regulation 2007 states that bamboo is prescribed as a tree for the purpose of the Act. Bamboo was seen to be growing on the northern and western boundaries of the respondent’s garden, especially in the north-western corner close to the applicants’ property. Some patches were tall and thick and other patches were dead.

12 The applicants contend that the bamboo along their boundary with the respondent had contributed to damage to the previous timber fence and necessitated the replacement of that fence. The fence was replaced about 5 years ago and the parties shared the cost of the installation of a root barrier to about 1 m depth. This runs close to the fence on the respondent’s side.

13 Mrs Cattley described how she and her husband and a gardener have been working progressively towards eradication of the bamboo; she stressed that the process was one of trial and error and that it takes time. She stated that the timing of herbicide application to new growth was critical. Evidence of this program was noted. A small clump of bamboo was seen on the applicants’ property near a gate between the two properties and 2 much smaller clumps were noted in the garden bed adjacent to the fence.

14 The applicants are concerned that this will grow and damage the fence. Mrs Cattley stressed that they want to eradicate the bamboo but it takes time.

15 The Court must also consider a number of matters under s12 of the Act. The relevant clauses in this case are;

(a) The trees are wholly located on the respondent’s property.
(c) The whole of the property 7-9 Myra Street Wahroonga is listed in Schedule D of the Hornsby Shire Council Local Environment Plan 1994 as a heritage item of regional significance. The listing is for the property “Tenterfield” and garden. It can be reasonably argued that the Camphor Laurels are contemporaneous with the house and have heritage value.
(d) The Pittosporum is likely to contribute to the local ecosystem and to biodiversity.
(e) The trees contribute to the natural landscape and the scenic value of the land on which they are growing and to the locality. They create a tall screen along the northern boundary. Mrs Cattley explained that Hornsby Shire Council has rezoned the area to the west of the Lo’s property for 5 storey residential flat buildings and therefore the retention of the visual screen was essential for their future privacy.
(f) The trees have intrinsic value to public amenity as they are part of the overall canopy that contributes greatly to the landscape character of the area.
(h)(i) The age and condition of the fence was considered to be a major determining factor in the decision to replace it.
(h and i) (ii)- any steps taken by the applicants or the respondent. As previously stated, the applicants had the trees lopped to near the fence line. AS4373:2007 Pruning of Amenity Trees list lopping as an unacceptable pruning practice. In my opinion this has caused the dieback of the stubs on trees 1 and 3 and the death of the most northerly of the trunks of tree 4. It has also given rise to the production of weakly attached epicormic shoots on the exposed sides of the trunks nearest the applicants’ property. Therefore, the applicants are somewhat responsible for the failure of the epicormic shoots.
The respondent has engaged a tree contractor to assess the trees however that person did not identify the dead wood in the upper parts of the canopies. With respect to the bamboo, its ongoing removal is being undertaken by the respondent and the installation of the root barrier appears to be about 95% successful.

16 After viewing the evidence, trees 1 to 5 contain dead wood that could either cause damage to property or pose a risk of injury to people. Therefore s10(2) is satisfied and the Court’s jurisdiction enlivened and the Court can make an order with respect to each tree.

17 The bamboo may have contributed in the past to the damage to the fence however, the photographic evidence is inconclusive and there is no likelihood of damage being caused to the fence in the near future. Therefore as none of the tests under s10(2) are satisfied, the Court cannot make an order with respect to the bamboo.

18 Therefore the orders of the Court are:

1. The application is upheld in part.

2. The application for removal of the bamboo is refused.

3. The application for $100 compensation is upheld and the respondent is to pay the applicants this sum within 21 days of the date of these orders.
4. The respondent is to engage an AQF level 3 arborist with appropriate insurances to remove all dead wood down to 30 mm in diameter from trees 1 to 5. With the 4 camphor laurels, the dead wood is only required to be removed to a distance of 4 m from the fence line but to the full height of the trees. The previously lopped dead stubs and stems are to be removed as part of these works.
5. Prior to the engagement of the arborist, the respondent is to obtain 3 itemised quotes for the above works within 30 days of the date of these orders. The pruning of the Pittosporum is to be a separate item. The applicants are to agree to the choice of one of those contractors.
6. The works are to be completed within 60 days of the date of these orders and must be carried out in accordance with AS4373:2007 and the WorkCover Code of Practice for the Amenity Tree Industry.
7. The respondent is to pay the full amount of the works.
8. The applicants are to reimburse the respondent for 25% of the costs of the works on trees 1-4 (the Camphor Laurels) within 21 days of the receipt of a tax invoice for the completed works.
9. The respondent is to give at least 5 working days notice of the works to the applicants.
10. The applicants are to provide all reasonable access for the works to be undertaken in a safe and efficient manner.

___________________

J Fakes
Commissioner of the Court