Ramplin v Pink

[2008] NSWLEC 1200

Land and Environment Court

of New South Wales

CITATION:

Ramplin v Pink [2008] NSWLEC 1200
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
John Ramplin

RESPONDENT
Kimberley Pink

FILE NUMBER(S):

21342 of 2007

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Pruning of tree, risk of injury to people, property damage

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

08/05/2008

EX TEMPORE JUDGMENT DATE:

8 May 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Loughnan, solicitor
of Harris Wheeler Lawyers

RESPONDENT
Mr M. Evers, solicitor
of Michael Evers & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

8 May 2008

21342 of 2007 John Ramplin v Kimberley Pink

JUDGMENT

The decision was given at the hearing on 8 May 2008.
This written judgment reflects the background information and the findings.

1 ACTING COMMISSIONER: Mr Ramplin and his neighbour Mr Pink live in older, modest cottages in Steel Street, Redhead, a beachside village near Newcastle. Mr Ramplin’s front yard has no trees and the lawn is neatly kept.

2 Mr Pink and his family have native trees in their yard. Their largest tree is a Blue Gum about 12 m tall, planted 22 years ago to commemorate the birth of their first child. This tree, growing close to the common boundary in the front yard is the cause of Mr Ramplin’s concerns.

3 Branches of the tree overhang Mr Ramplin’s property. He claims that four or five dead branches up to 3 m long and 50 mm in diameter have fallen out of the tree over the years. The last of these fell more than two years ago. Small dead twigs fall frequently.

4 Mr Ramplin is quadriplegic. He has daily visits by a nurse. His bedroom is near the front of the house. His fears include that the tree may crash onto his dwelling with him inside, and that branches may bring down power lines over his front yard and cause injury to visitors such as a nurse.

5 From about eight years ago Mr Ramplin has had contractors lop branches that overhang his property. The contractors have entered Mr Pink’s property without permission and done rough lopping. He has not had any lopping done in the last two years.

6 There was poor communication between Mr Ramplin and Mr Pink in the past, and negotiations to reach agreement on management of the tree do not seem to have improved after Mr Ramplin’s solicitors were involved.

7 Mr Ramplin seeks removal of the tree to avoid damage to his property and injury to people.

8 Mr Pink has offered to trim offending branches that are over the boundary.

9 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 each tree before making an order regarding that tree.

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?

10 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?

The Tree

11 The tree appears to be Eucalyptus saligna x botryoides a common hybrid between Sydney Blue Gum and Bangalay that is well suited to sandy, coastal locations.

12 Mr Pink made an application to the City of Lake Macquarie for removal of the tree. The determination dated 10 March 2008 refused removal with the stated reason that the tree appears to be in sound and stable condition. Mr Pink’s written submission states that the Council tree officer said the tree had no root disturbance, no disease, no insect problems, no browning leaves, no signs whatsoever of the tree being unstable, and his only advice was to cut out the deadwood. The Council tree officer also said he would give permission for 15% crown thinning, and advised that only branches that were rubbing together should be removed. Mr Pink states that he is arranging to have that work done.

13 Mr Pink also states that he had an arborist from J K Cooper assess the tree on 9 April 2008 and his opinion was that the tree was unlikely to fail.

14 Mr Pink further states that he saw no soil heave around the tree during the wild storms that hit the area in June 2007, and his wife states that she looked around after that storm and no branches had fallen off the tree. Winds during that storm were from the south which is the direction of most concern to Mr Ramplin, but the storm also blew from other directions.

15 I observed the tree at the hearing and found that it appears to be healthy, with some leaf damage typical of the species. I saw no included bark in branch junctions. The tree has a slight lean and heavier canopy towards Mr Ramplin’s property but that is likely to be the result of salt and wind pruning on the southern side and ongoing minor pruning for wires clearance on the street side.

The issues

16 The issues in this case are:

• Has the tree caused or is it causing damage to Mr Ramplin’s property or any person ?
• Is the tree likely to cause damage to Mr Ramplin’s property in the near future ?
• Is the tree likely to cause injury to any person ?
• Does the tree provide any benefits to support its retention?

Has the tree caused or is it causing damage to Mr Ramplin’s property or any person ?

17 Mr Ramplin stated at the hearing that the tree has not caused damage to his house, fence or power lines, and has not caused injury to any person.

Is the tree likely to cause damage to Mr Ramplin’s property in the near future ?

18 I am satisfied that Mr Pink has acted to have the tree inspected and to carry out removal of dead wood and crossing branches that may develop weakness. I am also satisfied that the time is still sufficiently short since the June 2007 storms to say that if the tree did not fail then, it is unlikely to fail in the near future being a period of about a year from now.

Is the tree likely to cause injury to any person ?

19 On the same basis as above, and on Mr Pinks stated intention to have the tree inspected at five yearly intervals by an AQF Level 5 arborist, I am satisfied that the tree will be well managed and unlikely to cause injury to any person.

Does the tree provide any benefits to support its retention ?

20 Under s 12 of the Act I am obliged to consider other matters including values of the tree and contributions made by the tree. I noted earlier the importance of the tree to Mr Pink’s family as it was a commemorative planting. Mr Pink also states that his mother in law who lives with the family loves the tree and is distressed that it may be removed. Mr Pink’s written submission includes various accounts of the possums, wattle birds, magpies, parrots, and bats that regularly visit the tree, and the visual, wind-break and shade benefits provided by the tree.

Conclusion

21 On the evidence provided I find that the tree has not caused damage and is unlikely to cause either damage to Mr Ramplin’s property in the near future or injury to any person. Therefore I find no reason to order removal or interference with the tree, and the application should be dismissed.

22 I am pleased to note that, at the hearing, the parties and their legal representatives came to an agreement for management of the tree and I here record that agreement for their records:

1. The respondent agrees to have the tree inspected by an AQF Level 5 arborist by 31 July 2008 and to do so at 5 yearly intervals thereafter, and to carry out any reasonable tree management work recommended by such arborist;
2. The respondent agrees to remove twigs and branches from the applicant’s gutter and power lines at 3 monthly intervals or sooner if reasonably indicated to be necessary by the applicant;
3. Work in 1. and 2. above shall be at the cost of the respondent;
4. The applicant will not have the tree pruned but will bring any concerns regarding overhanging branches to the attention of the respondent who will make a response on what work he intends to do within one month of being asked;
5. The applicant will pay for any work on his side of the boundary done solely at his request;
6. All work on the tree shall be done by an arborist agreed to by the respondent.

Orders

23 The formal order of the Court is that the application is dismissed.

___________________

Peter Thyer
Acting Commissioner of the Court

11/06/2008 - For clarity, change of location of notation of agreement between the parties. - Paragraph(s) 22 & 23