Ridley v Gyler

[2007] NSWLEC 220

Land and Environment Court

of New South Wales

CITATION:	Ridley v Gyler [2007] NSWLEC 220
PARTIES:	APPLICANT Bruce Ridley RESPONDENTS Michael & Michelle Gyler
FILE NUMBER(S):	20137 of 2007
CORAM:	Moore C - Hussey C - Fakes AC
KEY ISSUES:	Trees (Neighbours) :-
DATES OF HEARING:	20 April 2007
EX TEMPORE JUDGMENT DATE:	20 April 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENTS In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
HUSSEY C
FAKES AC

20 April 2007

07/20137 Bruce Ridley v Michael & Michelle Gyler

JUDGMENT

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

The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These formal Orders are not reproduced as part of this decision but a copy the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

1 THE COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). The application is made by Mr Ridley who is a resident of 21A Nepean Avenue, Normanhurst (the Ridley property), concerning a tree on a property owned by Mr and Mrs Gyler (the Gyler property). The street address of the Gyler property is 16A Osborn Road, Normanhurst but it is a property which adjoins the Ridley property.

2 The tree which is the subject of this application is dead and there is agreement between the parties, based on professional arborist’s advice, as to the height above the ground at which the dead tree should be removed. We have identified a location between two nodes on the trunk of the tree (pointed out to the parties) and they have agreed that will be an appropriate point for the Court to identify, in a consent Order for removal, as the point at which such removal should take place.

3 We are left, then, to determine the question of whether or not the Gylers should be required to pay compensation to Mr Ridley for damage caused to his property.

4 The sum that is claimed is $1420 in total and is made up of four elements.

5 Two minor elements comprise the physical cost of additional ridge caps and replacement tiles - these costs totalling $40.

6 The next element claimed is $380. This is based on a quotation, attached to Mr Ridley’s application, from Davlan Roof Tiling Pty Ltd to Mr Ridley dated 9 February 2007 for re-bedding and pointing of six ridge caps located on the more easterly of the two north facing dormers on the main body of the house structure.

7 We have inspected the dead tree both from the Ridley property and from the Gyler property and we have seen the damage to the ridge capping and adjacent tiles of that the dormer.

8 Essentially, the difference between the parties arises as to the cause of rather than the existence of the damage to the dormer ridge capping.

9 The Ridleys’ proposition is that this damage was caused by the falling of dead branches from the dead tree whilst it is the Gylers’ contention that it is more probable than not that the damage was occasioned by the falling of deadwood from a Blackbutt tree located on the Ridley property. This Blackbutt is closer to the damaged dormer than the dead tree.

10 Mr Ridley has produced a sample of a branch he says is typical of and representative of the branch which damaged the ridge capping.

11 It is a piece of timber that is totally stripped of bark and is more characteristic of the limbs on the dead tree than that of the deadwood fallen from the Blackbutt which has, although dead, some smooth bark retained on it at the time of fall.

12 It is Mr Ridley's evidence that the specimen of branch he has shown to us, whilst it is not the actual branch which caused the damage to the ridge capping, is the same as or consistent with the branch that caused the damage.

13 Mr Ridley has produced to us extensive mathematical calculations to demonstrate that, under various wind loads and directions, it would be possible that a branch from the dead tree could fall and cause the damage.

14 We have considered these but consider that we do not need to deal with them in detail.

15 Mr Gyler submitted that it would be improbable for a branch to fall from the dead tree and damage that portion of ridge capping without being deflected by the canopy of the Blackbutt.

16 In this regard that we are left with the uncontradicted evidence of Mr Ridley as to the nature and physical characteristics of the branch which occasioned the damage.

17 Having examined the canopy of the Blackbutt, we are satisfied that it is possible that the branch could have fallen from the dead tree in the direction of the dormer and that it is not improbable that it could be the cause of the damage when coupled with the evidence of the nature of the timber which did cause the damage.

18 We are therefore prepared to accept, based on the uncontradicted evidence of the timber type and on the fact that, on the balance of probabilities it is probable that that timber type could have caused the damage and that it could only have come from the dead tree.

19 This conclusion is reinforced by the fact that Mr Ridley has also given uncontradicted evidence that he had commissioned and had undertaken, some three months prior to the damage to the ridge capping, the removal of the then existing deadwood in the Blackbutt.

20 We therefore propose to accept the quotation for $380 that Mr Ridley has provided and order that the Gylers reimburse Mr Ridley, after the production to them of a receipted invoice for carrying out of the work, to a maximum of that sum.

21 The final element of the Ridleys’ claim is an application for $1000 representing compensation for their own exertions and time in replacing tiles each time damage was caused by falling branches from the dead tree.

22 We do not need to deal with the question of the basis of calculation for that kind of compensation as we are satisfied that personal exertion claims on behalf of applicants (including claims such as this) do not appropriately fall within the scope of compensation orders contemplated by s 9 of the Act.

23 In the absence of any judicial authority to the contrary, we consider that it would not be reasonable under all the circumstances to provide an order for such compensation.

24 Even if we were not satisfied on this basis, we have no appropriate basis upon which we could accept the calculation of the amount which would be awarded even had we reached a different conclusion on the preliminary policy point.

25 We do not consider that there is any point in dissecting the claim for the comparatively minor amount of money as to how many tiles were damaged or ridge caps required replacing for the purposes of calculating the sum of $40 claimed by Mr Ridley. We are satisfied that Mr Ridley has supported this part of his claim by setting out his calculations and pointing out the areas of damage for which he has claimed. We consider that is fair and reasonable to accept Mr Ridley's calculation of cost and materials used under these circumstances.

26 We therefore propose to make a number of Orders of the Court.

27 The first, by consent, will be that the tree be removed to the point on its trunk which will be marked on a photograph appended to and forming part of the Orders of the Court.

28 We propose to provide a period of 60 days within which this tree removal is to occur – this being a reasonable period for such activity to be undertaken. We propose that the orders will permit Mr and Mrs Gyler to approach the Court, if necessary, to seek an extension to the period if there are weather or other reasons why is not possible for the Order be carried out in that period of time.

29 We propose to order that Mr and Mrs Gyler pay the sum of $380 to Mr Ridley within twenty-eight (28) days of the provision to Mr and Mrs Gyler by Mr Ridley of a receipted invoice for the works set out in the Davlan Roof Tiling quotation.

30 We will further order that Mr and Mrs Gyler pay the sum of $40 to Mr Ridley within twenty-one (21) days of the date of the formal Orders of the Court – this sum being for the replacement materials used by Mr Ridley.

Tim Moore

Commissioner of the Court

Bob Hussey

Commissioner of the Court

Judy Fakes

Acting Commissioner of the Court