Payne and Simankevicius v Thornhill

[2007] NSWLEC 851

Land and Environment Court

of New South Wales

CITATION:

Payne & Simankevicius v Thornhill [2007] NSWLEC 851

PARTIES:

APPLICANT
Carol Payne and Almis Simankevicius

RESPONDENT
Mr and Mrs Peter Thornhill

FILE NUMBER(S):

21005 of 2007

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Removal of tree, yearly removal of dead branches from second tree.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

10/12/2007

EX TEMPORE JUDGMENT DATE:

10 December 2007

LEGAL REPRESENTATIVES:

APPLICANT
Ms C. Payne and Mr A. Simankevicius, litigants in person

RESPONDENT
Mr and Mrs P. Thornhill, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

10 December 2007

21005 of 2007 Payne & Simankevicius v
Mr &Mrs Thornhill
JUDGMENT

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

1 Acting Commissioner: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning two trees (the trees) situated at 21 A Baldwin Street Gordon (the property). The property is owned by Peter and Frieda Thornhill.

2 The two trees are Blackbutts (Eucalyptus pilularis).

3 The application has been made by Carol Payne and Almis Simankevicius, owners of 21 B Baldwin Street Gordon, the adjoining property to the north of the trees.

4 The application seeks orders from the Court for removal of Tree A the smaller Blackbutt; and yearly removal of dead branches from, and the thinning/pruning of the branches overhanging the common boundary of Tree B the larger Blackbutt.

5 The relevant provisions of s 10(2) of the Act require that the Court be satisfied that one or more of four conditions are met, with respect to each tree subject of an application, before the Court has jurisdiction to consider the application concerning that tree.

6 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?

8 I have adopted the naming of the two trees as used in the application, that being Tree A for the smaller, more easterly Blackbutt tree; and Tree B for the larger Blackbutt tree.

9 Tree A has a height of approximately 20 m, canopy spread of 10 m and trunk diameter of 0.6 m.

10 Tree B has a height of approximately 25 m, canopy spread of 20 m and trunk diameter of 0.9 m

11 The trees form part of the forest character of the suburb and add to the environmental benefits of the adjoining bushland reserve along High Ridge Creek.

12 I note that an application to Ku-ring-gai Council for removal of Tree A was refused in July 2007. The letter from Council dated 12 July 2007 advised that Council’s Tree Management Officer had found that the tree appeared to be in a healthy condition and there was no obvious evidence to indicate that predictable tree failure was likely at the time of inspection. That letter also advised that the matter could be reassessed if a comprehensive and detailed report from a consulting arborist was submitted.

13 I note also that at a Community Justice Centre mediation on 24 September 2007 the applicants agreed to organise an arborist to inspect Tree A and to prepare a report for Council within six weeks, and the respondents agreed to have Tree B inspected by an arborist within six weeks. I find it disappointing that the parties have not fulfilled that agreement to obtain professional advice regarding the trees.

14 I have examined the trees from the ground, have considered the information provided by the parties and have reached the following conclusions with respect to this matter.

15 The trunks of both trees appear to be structurally sound and there is no evidence of instability in the ground. The branch junctions of both trees appear to be sound with no evidence of included bark. Both parties agree that no live branches have fallen from either tree.

16 There is dead wood in the canopy of both trees.

17 I am satisfied that damage has occurred to the applicant’s house, that being broken roof tiles and three puncture holes in the polycarbonate roofing of the veranda, and internal water damage as a result of the broken tiles.

18 I am satisfied that damage has been caused, and that injury to a person is likely to occur; as a result of dead wood falling from the trees.

19 I am also satisfied that the risk of damage and injury is sufficient for the Court to order an intervention with the trees.

20 I note however, the wish of the parties that orders not be made, and their assurances that they will fulfil an agreement for management of the trees.

21 I note also that the agreement of the parties does not in any way remove the common law rights of the parties to prune the trees to the extent permitted by the Ku-ring-gai Council Tree Preservation Order or a consent issued by that Council.

22 Therefore, I dismiss the application, noting the agreement of the parties as follows:

1. Dead wood having a diameter greater than 20 mm shall be removed from both Tree A and Tree B by 31 January 2008 or as soon as possible thereafter, then annually for the next two years and every second year thereafter;
2. The applicant shall initiate the dead wood removal by obtaining quotation(s) for the work, and providing a copy of these to the respondent.
3. The respondent shall be given a reasonable opportunity to comment on the quotation(s);
4. The respondent shall then order the work to be carried out;
5. The work shall be done in accordance with AS 4373-2007 The Australian Standard for Pruning of amenity trees;
6. The work shall be carried out by an arborist holding AQF Level 3 qualifications and suitable insurances;
7. The applicant shall allow access to their property at a reasonable time, on reasonable notice for the work to be carried out, and shall be entitled to supervise that access;
8. The applicant shall be given at least one day notice prior to the work being carried out;
9. On completion of the work, the applicant and the respondent shall each pay 50% of the cost of the work to the contractor.

___________________

Peter Thyer
Acting Commissioner of the Court