Ruck, Fiona v Wheeler, Raymond

[2007] NSWLEC 517

Land and Environment Court

of New South Wales

CITATION:

Ruck, Fiona & Anor v Wheeler, Raymond [2007] NSWLEC 517

PARTIES:

APPLICANT
Ruck, Fiona & Anor

RESPONDENT
Raymond Wheeler

FILE NUMBER(S):

20363 of 2007

CORAM:

Bly C - Thyer AC

KEY ISSUES:

Trees (Neighbours) :- pruning and canopy reduction

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

25/07/2007

EX TEMPORE JUDGMENT DATE:

25 July 2007

LEGAL REPRESENTATIVES:

APPLICANT
Ms Ruck, litigant in person

RESPONDENT
Mr R. Wheeler, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C
Thyer A C

25 July 2007

20363 of 2007 Ruck, Fiona & Anor v Wheeler, Raymond

JUDGMENT

1 This is an Application pursuant to section 17 of the Trees (Disputes Between Neighbours) Act 2006 (“the Act”) in relation to an application by Mrs F Ruck of 11 Wallace Street, Waverley and Mr A Thorn of 13 Wallace Street, Waverley in relation to three large Eucalyptus Trees on the adjoining property at No 5, Wallace St, Waverley.

2 The Hearing was conducted on site where we heard from Mrs Ruck and Mr S Hutchinson on behalf of Mr Thorn. We also heard from Mr Wheeler, the owner of No 5 Wallace Street.

3 We were also provided with a letter forwarded to Mr Wheeler by the Waverley Council, that letter comprising a consent under the Council's Tree Preservation Order for the pruning to all three of the trees (referred to as Tress A, B and C) under consideration. That consent was issued under the signature of Mr J Hilliard, Council's Tree Management Officer. The Court had the benefit of Mr Hilliard's advice whilst on site.

4 Pursuant to section 10 of the Act we accept that the Parties have made efforts to resolve this matter but those efforts were unsuccessful. It thus falls to the Court to decide the matters of concern to Mrs Ruck and Mr Thorn. We also have the benefit of Mr L Willis, Mr Wheeler's arborist’s advice in relation to these trees. Mr Willis recommends various works including significant crown reduction of Trees A and B, and the complete removal of Tree C referred to in the Council consent. Mr Willis also acknowledges the alternative of a significant crown reduction for Tree C. Also as a result of the longicorn beetle attack on Tree C it is at risk of loosing significant branches. To reduce this risk he recommends a significant crown reduction. In relation to Tree B, he notes the evidence of longicorn beetle attack and some root stress and recommends a crown reduction to bring the tree into the low risk category. In relation to Tree C the largest of the three trees he again recommends a significant crown reduction.

5 Following our inspection of the three trees we visited Mrs Ruck's rear garden and from this position we were able to inspect the canopy of the trees in so far as they affect her property and that of Mr Thorn.

6 Conspicuously, there are two large limbs associated with Tree A that overhang these properties. Mrs Ruck and Mr Hutchinson were at pains to explain their considerable concerns and worry regarding the possibility that any of these trees but more particularly Tree A, could either have a limb break off and fall into their property and potentially injure them or the tree itself to blow over in the wind.

7 Whilst these concerns are understandable we are satisfied that there is no fundamental necessity that requires the removal of any of these trees. In reaching this conclusion we recognise the contribution that these trees make to the local eco system and the landscape and scenic value of the locality in which they are situated . They plainly add to public amenity. This is not to say that concerns about human safety and protection of property are not important, rather having considered the evidence of Mr Wheeler's arborist and the Council's Tree Management Officer, we are satisfied that subject to significant pruning of these trees that any such risk would be within reason and on balance, comprise a satisfactory outcome, meeting both objectives.

8 We have therefore decided that the Court should order that the consent issued by the Council should be complied with, within a period of 30 days of the Court’s orders at Mr Wheeler's cost, he being the owner of the property that contains the trees.

9 To that consent we would add the requirement that the two large limbs on the lower left side of Tree A which we have marked A1 and A2, on the photograph accompanying the Council's consent (Exhibit A) be removed at an appropriate location adjacent to the trunk of that tree.

10 We note that in addition to facilitating significant pruning of these trees, the consent also requires the removal of rubbing/crossing branches as well as the removal of deadwood, which has been a potentially dangerous problem for the neighbours.

11 In addition we order that the owner of No 5, Wallace Street Waverley shall at no greater than five year intervals engage an AQF Level5 qualificatied arborist to carry out an inspection of these trees to examine the trees' health and safety including the removal of deadwood and rubbing/crossing branches and making appropriate recommendations in a written report.

12 A copy of these reports are to be provided within 14 days of their preparation to the owners of Nos 11 and 13, Wallace Street, Waverley.

___________________

T A Bly
Commissioner of the Court
DK

___________________

P Thyer
Acting Commissioner of the Court