Thornberry & anor v Packer & anor - [2010] NSWLEC 1069

Land and Environment Court

of New South Wales

CITATION: Thronberry & Anor v Packer & Anor [2010] NSWLEC 1069

PARTIES:
APPLICANTS
John Thornberry
Vivien Bruce
Liza Bruce
RESPONDENTS
Leighton Packer
Hannah Merse

FILE NUMBER(S): 20015 of 2010

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property
Compensation
Injury to persons
Removal and compensation refused
Orders for pruning

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Robson v Leischke [2008] NSWLEC 152
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 17/03/10

DATE OF JUDGMENT:
17 March 2010

EX TEMPORE JUDGMENT DATE: 17 March 2010

LEGAL REPRESENTATIVES:
Mr David Burgan
Solicitor
Richardson Legal
Mr Kevin Pearce
Solicitor
Aubrey Brown Partners

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

17 March 2010

20015 of 2010 Thornberry & anor v Packer & anor

JUDGMENT

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

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Mr J Thornberry, Ms V Bruce and Ms L Bruce of 72 Beaufort Road Terrigal against the owners of a tree growing at 36 Cheryl Avenue Terrigal. The owners of that property are Mr L Packer and Ms H Merse. The applicants were represented by Mr D Burgin, solicitor and the respondents by Mr K Pearce, solicitor. Mr R. Kingdom, the applicants’ arborist gave evidence at the on-site hearing.

2 The applicants are seeking the removal of a mature Eucalyptus pilularis (Blackbutt) as they contend that it has caused, is causing, and could, in the near future cause, damage to their property, and is a risk of injury to persons. They are also seeking compensation of an amount of $5186.50 for repair of a glass roof panel and the repair of a retaining wall and concrete slab.

3 The damage said to have been caused by the tree is damage to a glass ceiling panel and to numerous roof tiles from falling dead wood. The applicants also contend that roots from the tree have caused cracking of a concrete slab and cracking and displacement of a masonry retaining wall. The glass panel was broken some 6-7 years ago, and over the 19 years that the applicants have lived in their house, they estimate that they have replaced at least 4 roof tiles per year.

4 The other issue raised in their application is the staining of clothes from the droppings of insects feeding on the tree onto clothes on their clothesline that is located directly beneath the tree.

5 With respect to the claim for compensation, the respondents exchanged contracts on 36 Cheryl Avenue on 25^th September 2009 and settled some 10 weeks later. The damage, said to have been caused by the tree, was the cause of a long running dispute with the previous owner of that property and the subject of two withdrawn applications under the Act made…

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.

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Details

Case: [2010] NSWLEC 1069
Decision Date: 17 March 2010

CaseChat Overview and Summary

The applicants, John Thornberry, Vivien Bruce, and Liza Bruce, have brought an application against the respondents, Leighton Packer and Hannah Merse, under the Trees (Disputes Between Neighbours) Act 2006, seeking the removal of a mature Eucalyptus pilularis tree on the respondents' property at 36 Cheryl Avenue, Terrigal. The applicants allege that the tree has caused, is causing, and could cause damage to their property, as well as a risk of injury to persons. They also sought compensation for damage to a glass roof panel and repairs to a retaining wall and concrete slab. The respondents, however, have refused to remove the tree and denied the compensation claim. The legal issues before the court were whether the tree had caused, was causing, or was likely to cause damage to property or injury to any person, and if so, what orders should be made under the Act.

The court examined the evidence presented, including an arborist's report, to assess the damage caused by the tree. The applicants claimed damage to their glass ceiling panel and roof tiles from falling dead wood, as well as cracking of a concrete slab and displacement of a masonry retaining wall due to tree roots. However, the court found that the evidence did not sufficiently prove that the tree's roots had caused the damage, and that the damage to the roof was from falling dead wood, which is a normal part of a tree's growth. The court also noted that the risk of injury was from falling debris, not from the tree's structure. The court concluded that the tree's structural issues did not pose an unacceptable risk of damage or injury.

The court then considered whether the damage or likelihood of injury was sufficiently serious to warrant intervention under the Act. It found that the tree was likely to cause damage to the applicants' property and injury to any person due to the falling of dead wood. Therefore, the court had jurisdiction to make orders under the Act. The court ordered the respondents to engage an arborist to remove all dead wood from the tree, in accordance with relevant standards and codes of practice. The court also ordered the respondents to give the applicants notice of the commencement of the works and to complete the works within 40 days. The removal of dead wood was to take place every two years, organised and paid for by the respondents.

The court dismissed the application to remove the tree and the claim for compensation, as no damage had occurred during the period of ownership of the respondents. The court also noted that the previous owner of the property had received council approval to remove the tree, but this approval was for a period of five years and had not been exercised. The court held that it was not obliged to accept the orders made by the parties and proceeded to make its own orders.

Orders