Thompson v Bignall

[2009] NSWLEC 1149

Land and Environment Court

of New South Wales

CITATION:

Thompson v Bignall [2009] NSWLEC 1149

PARTIES:

APPLICANT
Mark and Belinda Thompson

RESPONDENT
Lorraine Bignall

FILE NUMBER(S):

20133 of 2009

CORAM:

Fakes AC

KEY ISSUES:

TREES (NEIGHBOURS) :- removal of the tree, damage to property, risk of injury to people

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513

DATES OF HEARING:

15/05/2009

 
DATE OF JUDGMENT: 

15 May 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mark and Belinda Thompson, litigants in person

RESPONDENT
Lorraine Bignall, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC


15 May 2009

20133 of 2009 Mark and Belinda Thompson v Lorraine Bignall

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 made by Mark and Belinda Thompson of 5 Glencoe Avenue Wyoming against a Liquidambar located on a property owned by Lorraine Bignall at 3 Glencoe Avenue Wyoming.

2 The applicants are seeking the removal of the tree as they contend that it has caused damage to their property and may continue to do so. The actual damage relates to a fallen branch and the future damage concerns falling branches and root damage to the sewer. They are also concerned about potential risk of injury to people, especially their children, from falling branches and slipping on the fruit of the tree.

3 The respondent does not want the tree removed as she values the fact that the shade it provides avoids the need for air conditioning in summer. She also values its visual amenity. Ms Bignall stated that she purchased the property in 1994 partly because of its established garden.

4 The applicants purchased their property in 1991 and added a timber deck with a polycarbonate roof in 1995. The deck encompasses the existing stairs to the back door. The deck is located beneath the canopy of the Liquidambar.

5 The previous owner of 3 Glencoe Avenue had the tree lopped to the boundary fence in about 1992. There was some debate at the on-site hearing as to the circumstances of that action by the previous owner.

6 On the evening of the 29th December 2008, a live branch of about 200 mm in diameter fell from the Liquidambar and eventually landed on the metal roof of the applicants’ house. This dented the roof and pushed two screws about 5 mm through the gyprock ceiling of the back room and made a small hole in the external cladding of the house. Apart from the falling of dead twigs and very small branches, this was the first substantial branch to fall from this tree in the 18 years that the Thompsons have owned their property.

7 The branch failed approximately 1 m from the branch collar. It was located in the mid section of the canopy that overhangs the respondent’s house. The branch appears to have been deflected onto the applicants’ roof.

8 The end of the branch stub was inspected as were photographs of the branch after it fell. The pattern of fracture suggests ‘sudden limb failure’ or ‘summer branch drop’. No other signs of such failures were noted on the tree but the respondent stated that it had happened in another adjacent Liquidambar located in her back garden.

9 The tree was inspected from both properties and with the use of binoculars. It is a healthy, mature specimen located within 1 m of the side rear boundary fence. It is about 20 m tall. The evidence of the lopping, done some 16 years ago, is clear, however there appear to have been no significant failures from the branch stubs. The branches that have developed from these stubs appeared, from the ground, to be reasonably well attached.

10 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

11 The Court must also consider a range of other matters under s 12 of the Act. The relevant clauses in this case are:

(a) The tree is wholly located on the respondent’s property.

(e) The tree does make a contribution to the scenic value of the land on which it is situated. The tree was viewed from the respondent’s living room.
(f) There is some value to public amenity as it can be viewed from the street. There are numerous Liquidambars in the immediate area which contribute to the local landscape character.
(h)&(i) The applicants have removed some minor branches over their property which, I was informed, they are entitled to do under the Gosford City Council Tree Preservation Order. The respondent has removed some branches over her roof but not over the applicants’ property.

12 After viewing the tree and hearing the evidence, the following comments are made.

13 The applicants are concerned that overhanging branches may fail onto their property and cause damage or injury. In the 18 years that they have lived there, only 1 substantial branch has failed and that branch was not located directly above their roof but probably some 6 metres away. Whilst it did cause some damage it was relatively minor and easily repaired.

14 The applicants raised concerns over the potential for people to slip on the fruit that come from the tree. In Barker v Kyriakides [2007] NSWLEC 292 and subsequent tree dispute principle, the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. This applies in this case. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide.

15 Despite the fears that the roots of the tree may cause damage to the sewer, the sewer is not blocked and no damage has been caused to date.

16 The tree was well-established when the applicants purchased their property. A photograph of the property taken in 1993 confirms this. In the Tree Dispute Principle in Black v Johnson (No 2) [2007] NSWLEC 513 the issue of whether the tree was there first and its relevance to subsequent development is discussed. It is reasonable that the applicants built a deck under the tree but the fact that the tree would continue to grow should also have been clear.

17 The Gosford City Council Tree Preservation Order appears to provide some remedy for the selective pruning of some over-hanging branches. In this case, selective reduction pruning in accordance with AS4373 and performed by a suitably qualified arborist could reduce some of the overhang but not necessarily to the fenceline. This would require access to the respondent’s property to which she agreed as long as there was adequate notice. Whilst this option was canvassed at the on-site hearing, it does not represent a formal order of the Court.

18 Coming back to s10(2) of the Act, it can be stated that the tree has caused some damage to the applicants’ property. However, given that the damage was relatively minor. the fact that there has been only one such incident in 18 years, that the branch that failed was not associated with the previous lopping or was directly overhanging the applicants’ house plus the lack of evidence that the tree is likely to cause damage or injury in the near future, there is insufficient reason for the Court to order the removal or pruning of the tree.

19 Therefore the orders of the Court are that the application is refused.

___________________

J Fakes
Acting Commissioner of the Court