Turner v Bennett - [2008] NSWLEC 1364

Land and Environment Court

of New South Wales

CITATION: Turner v Bennett [2008] NSWLEC 1364

PARTIES:
APPLICANT
Lisa Turner
RESPONDENT
David and Marie Bennett

FILE NUMBER(S): 20328 of 2008

CORAM: Thyer AC

KEY ISSUES: Trees (Neighbours) :- Removal of tree, risk of injury, damage to property

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 01/09/2008

EX TEMPORE JUDGMENT DATE: 1 September 2008

LEGAL REPRESENTATIVES:
APPLICANT
Lisa Turner
RESPONDENT
David and Marie Bennett

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

1 September 2008

20328 of 2008 Lisa Turner v David and Marie Bennett

JUDGMENT

1 ACTING COMMISSIONER: Mr and Mrs Bennett purchased their South Coast holiday home about 30 years ago. It is in Manyana, a small village set in the coastal forest near Lake Conjola. They were captivated with the leafy village atmosphere, abundant wildlife and tranquillity. Mr Bennett says the gum tree in their backyard was there when they purchased, and its size has not changed much since then. They have not actively managed the tree in any way, and have not had it inspected at any time by an arborist. Branches of the tree overhang Ms Turner’s property by about 7 m and about one quarter of the tree canopy is over her property. The Bennetts claim that the tree had never been an issue to the three previous owners of Ms Turner’s property, and one of those owners extended the house under the tree canopy.

2 Ms Turner purchased her property in 2002 and initially rented it out. In 2005 she moved into the home. The backyard is quite small and much of it is under branches of the Bennett’s tree. Ms Turner has a preschool aged child who regularly plays in the backyard, often with friends. Ms Turner says that two live branches have fallen from the Bennetts’ tree into her backyard since December 2007. Both branches were about 4 m long and 60 mm thick, and fell on days of light or mild winds. The Bennetts dispute that the first branch was from their tree. Ms Turner had an arborist inspect the tree and the second fallen branch. The arborist identified decay that had weakened the fallen branch at its fracture point. The arborist recommended pruning of some overhanging branches, and inspection of the upper surface of branch forks.

3 Ms Turner tried unsuccessfully to reach agreement with the Bennetts about pruning of overhanging branches. She now seeks orders for removal of the tree to avoid risk of injury to people and to prevent damage to her property.

4 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met…

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 Turner v Bennett

Details

AGLC: Turner v Bennett [2008] NSWLEC 1364
Case: [2008] NSWLEC 1364
Decision Date: 1 September 2008

CaseChat Overview and Summary

In the case of Turner v Bennett, the applicant Lisa Turner sought orders under the Trees (Disputes Between Neighbours) Act 2006, claiming that a gum tree on the respondents' property, owned by David and Marie Bennett, posed a risk of injury to people and damage to her property. Turner alleged that two large branches had fallen from the tree into her backyard, and she sought orders for the removal of the tree. The Bennetts argued that the tree had not caused any damage and had been present when they purchased their property. Turner had unsuccessfully attempted to negotiate with the Bennetts regarding pruning of the overhanging branches.

The key legal issues before the court were whether the tree had caused or was likely to cause damage to Turner's property and whether it posed a risk of injury to any person. The court had to assess whether the statutory criteria for intervention were met, and if so, whether the seriousness of the damage or risk warranted intervention and what form that intervention should take.

In delivering the judgment, Acting Commissioner Thyer found that the tree had not caused or was unlikely to cause damage to Turner's property in the near future. However, the court found that the tree was likely to cause injury to people, given the risk of further branch failures and the reasonable use that Turner made of her backyard, where her child and friends regularly played. The court noted that the Bennetts had not taken any action to manage the risks posed by the tree, and they had refused to accept any responsibility for the cost of tree management.

The court concluded that intervention was necessary to manage the likelihood of injury, and it ordered the Bennetts to prune the tree at their cost, with a contribution from Turner. The orders required the Bennetts to prune all live branches on the eastern side of the tree to at least 1 meter on the western side of the common boundary, and all dead branches with a diameter greater than 20mm to at least 3 meters on the western side of the common boundary. Turner was required to contribute $600 towards the cost of the pruning, which was to be carried out by an arborist with appropriate qualifications and insurance. The Bennetts were also required to remove all tree debris from Turner's property, and Turner had to permit access to her property for the purposes of the pruning and clean-up, subject to certain conditions. The orders did not prohibit the Bennetts from carrying out additional pruning or removal of the tree.

Orders