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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thompson v Bignall

Details

AGLC: Thompson v Bignall [2009] NSWLEC 1149
Case: [2009] NSWLEC 1149
Decision Date: 15 May 2009

CaseChat Overview and Summary

The case of Thompson v Bignall involved an application by Mark and Belinda Thompson against Lorraine Bignall. The Thompsons sought the removal of a Liquidambar tree located on Bignall's property, citing damage to their property and potential future risks. The tree had caused a fallen branch to land on the Thompsons' house, resulting in minor damage to their roof and ceiling. The Thompsons also expressed concerns about the risk of falling branches and the potential for injury from slipping on the tree's fruit. Bignall opposed the removal of the tree, arguing its value in providing shade and enhancing the property's scenic value.

The primary legal issue in this case was whether the tree had caused, was causing, or was likely to cause damage to the Thompsons' property or injury to people within the near future. The court considered relevant legislation, including the Trees (Disputes Between Neighbours) Act 2006, and referred to previous cases such as Yang v Scerri, Barker v Kyriakides, and Black v Johnson (No 2). The court also evaluated the tree's contribution to scenic and public amenity.

The court found that while the tree had caused some minor damage to the Thompsons' property, the incident was isolated, and there was insufficient evidence to suggest that the tree would cause significant future damage. The court noted that the tree had been well-established before the Thompsons purchased their property, and that selective pruning could mitigate some risks. However, the court decided that the minor damage and lack of imminent threat were not sufficient grounds to order the tree's removal. Consequently, the court refused the Thompsons' application.

The court's orders were that the application by Mark and Belinda Thompson for the removal of the Liquidambar tree on Lorraine Bignall's property was refused.

Orders