O'Brien v Butler - [2008] NSWLEC 1345

Land and Environment Court

of New South Wales

CITATION: O’Brien v Butler [2008] NSWLEC 1345

PARTIES:
APPLICANT
Paul and Lee O’Brien
RESPONDENT
Doreen Butler

FILE NUMBER(S): 20582 of 2008

CORAM: Thyer AC

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

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 21/08/2008

EX TEMPORE JUDGMENT DATE: 21 August 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr and Mrs P. and L. O’Brien, litigants in person
RESPONDENT
Mr N. Butler, agent

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

21 August 2008

20582 of 2008 Paul and Lee O’Brien v Doreen Butler

JUDGMENT

1 ACTING COMMISSIONER: Mr and Mrs O’Brien seek orders for removal of a Cypress tree, to avoid risk of injury to people and to rectify or prevent damage to their property at 21 Bellevue Avenue, Greenwich. The tree is situated in the south-eastern corner of the front yard of the adjoining property to the west, 23 Bellevue Avenue, Greenwich, owned by Mrs Butler. Mrs Butler is an elderly woman residing in a nursing home; she was represented by her son Noel Butler.

2 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 the tree before making an order regarding that tree. These tests are:

3 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

The tree

4 I observed the tree to be a Cypress of about 14 m height, 12 m spread and 1.5 m diameter containing the multiple trunks. Its age condition is early senescence, evidenced by the sag of a large northerly growing branch above the common boundary, and opening of the top of the canopy. The O’Briens informed me that the sagging branch above the common boundary has increased its lean by about 30 degrees in the last 2 – 3 years.

Damage

5 Mr and Mrs O’Brien have shown me damage that they think is caused by roots of the tree. That damage is movement and cracks in their front brick boundary retaining wall, and cracks in the front room of their house.

6 The front boundary wall is located on the uphill side of the tree and the section closest…

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 O'Brien v Butler

Details

AGLC: O'Brien v Butler [2008] NSWLEC 1345
Case: [2008] NSWLEC 1345
Decision Date: 21 August 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Paul and Lee O’Brien applied for an order to have a Cypress tree removed from the property of their neighbour, Doreen Butler, at 23 Bellevue Avenue, Greenwich. The O’Briens claimed that the tree posed a risk of injury to persons and damage to their property at 21 Bellevue Avenue, Greenwich. Doreen Butler, who is elderly and resides in a nursing home, was represented by her son, Noel Butler.

The Court needed to determine whether the tree removal application complied with the criteria outlined in section 10(2) of the Trees (Disputes Between Neighbours) Act 2006. The Act stipulates that a tree can only be removed if it has caused, is causing, or is likely to cause damage to the applicant's property, or if it is likely to cause injury to any person. Furthermore, the Court had to consider if the damage or risk was sufficiently serious to warrant intervention, and what order should be made, as well as who should bear the cost of such an order.

The Court observed the Cypress tree to be approximately 14 meters high, with a spread of 12 meters and a diameter of 1.5 meters. The tree showed signs of early senescence, such as the sagging of a large northerly growing branch above the common boundary. The O’Briens had concerns regarding the movement and cracks in their front brick boundary retaining wall and cracks in the front room of their house, which they attributed to the tree's roots. However, the Court found that the damage to the O’Briens' property did not meet the tests in section 10(2)(a) of the Act, as the damage was more likely caused by the slope of the land, the type of clay on the site, and landscaping works carried out by the O’Briens.

The Court determined that the likelihood of the sagging branch falling and causing damage to the O’Briens' property in the near future satisfied the third test in section 10(2)(a) of the Act. Additionally, the Court found that the tree presented an unpredictable risk that large trunks may collapse in windy conditions, which satisfied the test in section 10(2)(b) of the Act, as it was likely to cause injury to any person, not only those on the O’Briens' property.

After considering the various factors outlined in section 12 of the Act, the Court found that the tree had beneficial features and significance to Mr Butler’s family, but it had entered senescence and presented a risk of damage and injury. The Court decided that the O’Briens' application was upheld, and orders were made for the removal of the tree.

The orders of the Court were as follows: Mrs Butler shall remove the Cypress tree by 15 January 2009, at her cost, with a 20% contribution from the O’Briens, capped at $600. The O’Briens shall pay the lesser of $600 and 20% of the receipted cost of the completed works, to Mrs Butler within 30 days of being given a copy of the receipt for those works. The tree removal shall be done by an arborist with AQF Level 3 qualifications and suitable insurances. All tree debris from the work shall be removed from the O’Briens’ property at Mrs Butler’s cost, as part of the tree removal. The O’Briens shall permit access to their property for the purpose of the tree removal and cleaning up, provided that access is on notice of at least seven days, and the work occurs on normal working days between 7.00 am – 6.00 pm Monday to Friday and 7.00 am – 1.00 pm Saturday, and the O’Briens are able to supervise that access.

Orders