Ludevig & Cramer v Howard - [2008] NSWLEC 1340

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Ludevig & Cramer v Howard [2008] NSWLEC 1340

PARTIES:
APPLICANT
Sabine Ludevig and Daniel Cramer

RESPONDENT
Robyn and Ken Howard

FILE NUMBER(S):
20671 of 2008

CATCHWORDS:
Trees (Neighbours) :- Removal of tree, damage to property, risk of injury to persons

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006

CORAM:
Thyer AC

DATES OF HEARING:
12/08/2008

EX TEMPORE DATE:
12 August 2008

LEGAL REPRESENTATIVES

APPLICANT
Ms S Ludevig and Mr D Cramer, litigants in person

RESPONDENT
Mrs R Howard and Mr K Howard, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Thyer AC
12 August 2008
20671 of 2008
Sabine Ludevig & Daniel Cramer v Robyn & Ken Howard
JUDGMENT

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

ACTING COMMISSIONER: Mariana Close is situated in a rocky, damp gully at the eastern edge of St Ives. There is a large natural rock overhang at the end of the street where the water drip keeps moss and ferns green. The view is dominated by remnant forest trees and native bushland. Although significant engineering has been necessary to construct houses in this landscape, those houses are well screened by the trunks and canopies of the trees.

The Howards bought their property at 4 Mariana Close more than 40 years ago with the driveway graded and compacted on the uphill side of a large Blackbutt tree (Eucalyptus pilularis). They had the driveway and carparking area concreted in about 1973, the edge of the concrete being within about 0.3 m of the trunk of the tree. The Angophora (Sydney Red Gum, Angophora costata) growing a few meters down slope of the Blackbutt is thought to be at least 30 years old.

Mrs Ludewig and Mr Cramer bought 2 Mariana Close in 2000. The property is located to the north and downhill of the Howards. The Ludewig and Cramer house is situated close to the common boundary with the Howards, about 3 m from the Angophora and about 7 m from the Blackbutt. Both trees overhang the Ludewig and Cramer house by about 10 m.

In 1987 the previous owners of 2 Mariana Close extended the house to its present location under the trees. That work included excavation of the hillside possibly up to 10 m deep near the boundary, about 6 m from the Blackbutt. The excavation caused collapse of the embankment under the Howards’ carport, leaving the concrete slab suspended in air. A large retaining wall was constructed to support the carport. The Howards claim that the ground around the Blackbutt and Angophora did not collapse even though it is only about 5 m from the carport, and credit the Blackbutt with keeping the ground in that area stable. The Howards also claim that the Blackbutt has not changed much in the last 20 years, and that it has had the same slight lean for all…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ludevig & Cramer v Howard

Details

AGLC: Ludevig and Cramer v Howard [2008] NSWLEC 1340
Case: [2008] NSWLEC 1340
Decision Date: 12 August 2008

CaseChat Overview and Summary

The case of Ludevig & Cramer v Howard involved a dispute between neighbouring property owners in St Ives, New South Wales, over the management and potential removal of trees on the Howards' property. The applicants, Sabine Ludevig and Daniel Cramer, sought an order for the removal of an Angophora (Sydney Red Gum) and heavy pruning or removal of a Blackbutt tree on the Howards' property, alleging that the trees posed a risk of injury and damage to their property and persons. The respondents, Robyn and Ken Howard, contested the application and argued that the trees were healthy and contributed significantly to the local environment and property stability.

The primary legal issue before the court was whether the trees in question met the criteria under the Trees (Disputes Between Neighbours) Act 2006 that would justify the Court's intervention in ordering their removal or significant pruning. The court had to determine if the trees had caused, were causing, or were likely to cause damage to the applicants' property, or if they posed a risk of injury to any person. If these conditions were met, the court would then consider whether the damage or risk was serious enough to warrant intervention and what orders should be made.

The court found that the Blackbutt tree had caused damage to the applicants' property by a falling dead branch in 2004, meeting one of the statutory tests. Additionally, there was a likelihood of future injury from falling deadwood, satisfying another test. However, the court also considered the trees' cultural, scenic, and ecological values, as well as their contribution to site stability. The court concluded that while the trees met some of the statutory criteria, the concerns of the applicants regarding tree stability and the Howards' willingness to manage the trees responsibly led to a partial refusal of the application. The court ordered that the Howards prune the trees as recommended in an expert report, with additional clarification on site and tree stability to be provided by the expert. The Howards were also required to remove pruning debris from the applicants' property and to provide access for the pruning work.

In summary, the court balanced the applicants' safety concerns against the trees' environmental and cultural significance, resulting in a nuanced decision that mandated specific tree management actions while rejecting the full removal of the trees.

Orders