Weinert v Metcalfe

[2016] NSWLEC 1017

Land and Environment Court

New South Wales

Medium Neutral Citation:	Weinert & anor v Metcalfe [2016] NSWLEC 1017
Hearing dates:	22 January 2016
Date of orders:	22 January 2016
Decision date:	22 January 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application granted in part see [24]
Catchwords:	TREES [NEIGHBOURS] Damage to property; compensation; extent of damage; actions of the parties; pruning, removal and compensation ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 Yang and Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	P and L Weinert (Applicants) J Metcalfe (Respondent)
Representation:	Applicants: P & L Weinert (Litigants in person) Respondent: J Metcalfe (Litigant in person)
File Number(s):	20888 of 2015

Judgment

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

1. COMMISSIONER: The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of two trees (trees 4 and 5), maintenance or removal of another nine trees, and compensation of $4,340 - $540 for an antenna and $3,800 for cleaning and repainting of guttering.

2. These orders are sought on the basis that two of the trees have caused damage to the guttering and the antenna and the other trees may cause damage in the future. The quote for the repainting of the whole of the guttering is based on the difficulty in matching the colour.

3. The trees in question are growing on the respondent’s Yerrinbool property close to the dividing fence between the parties’ properties. The respondent planted the trees to screen the applicants’ two storey dwelling which was constructed sometime after she had purchased her property.

4. The relevant jurisdictional test is found in s 10(2)(a) of the Act. This states that the Court must not make an order under this part unless it is satisfied that a tree the subject of an application has caused, is causing, or could in the near future cause, damage to property on an applicant’s land. This must be applied to each of the trees nominated in the application claim form.

5. As the applicants are concerned about future damage, the guidance decision in Yang and Scerri [2007] NSWLEC 592 is relevant. This considers the ‘near future’ to be a period of 12 months from the time of the hearing.

6. In the absence of any independent arboricultural evidence tendered by either party, with the arboricultural expertise I bring to the Court I make the following observations summarised in Table 1.

Tree No.	Common name	Comments
1	Jacaranda	Young, suppressed, small, slow growing
2	Ash	Not close to applicants’ dwelling
3	Robinia	Lopped, epicormic regrowth, close to antenna
4	Poplar	Healthy, recently pruned but low branches interfering with antenna
5	Walnut	Healthy, low branches close to applicants’ property
6	Paulownia	Dead
7	Catalpa	Not close to applicants’ property
8	Box Elder	Low branches overhanging guttering at rear
9	Silver Birch	Small low branches close to guttering
10	Cherry	Not close to applicants’ property
11	Catalpa	Well away from applicants’ property

Table 1: List of trees

7. Based on these observations, I am not satisfied that Trees 1, 2, 7, 10 and 11 have caused, are causing, or are likely in the near future to cause, damage to the applicants’ property. They are either too far away or growing too slowly. As s 10(2) is not met for these trees, no orders can be made for any interference with them.

8. The damage to the guttering, said to have been caused by the trees, is the removal of a small area of paint from the underside of a small section of the upper level guttering. The damage to the antenna is the dislodgement of the section which receives the Sydney channels; local channels are still available.

9. The trees most likely to have caused the damage are trees 3, 4 and 5. I am satisfied that the Court’s jurisdiction is engaged for these trees.

10. I am also satisfied that branches from trees 6, 8 and 9 could in the near future cause damage to the applicants’ property.

11. In considering what, if any, orders should be made, I must consider any relevant matters in s 12 of the Act; most applicable are subsections (b2) – impacts of pruning, (b3) – amenity, and (h) – actions of the parties.

12. The antenna was damaged in about November 2014. The applicants wrote to the respondent and advised her of the situation. In May 2015 the parties entered into mediation in an attempt to resolve the dispute. The respondent subsequently had the Poplar (T4) pruned and Robinia (T3) lopped. I believe branches from other trees were also removed. Further pruning has since occurred.

13. Apart from the loss of paint, the guttering in that section of the applicants’ dwelling appears to be in good condition. The house was built (by others) in 1996 and the guttering is original. Some of the guttering on the opposite side has its paintwork intact but is showing signs of corrosion.

14. Having considered the positions of the parties and observed the trees, I make the following findings.

15. Although some paint has been removed it is over a very small section of the guttering. It appears cosmetic and not structural and in my view is too minor to warrant an order of the Court. It is located in a section of the dwelling that is only visible from the rear of the side passage between the parties’ properties and touching it up with a closely matched paint would be unlikely to detract from the appearance of the applicants’ dwelling. The request for an order for the repainting of all the guttering on a two-storey dwelling is unreasonable in the circumstances. No orders will be made for any repainting at the respondent’s expense.

16. In regards to the antenna the quote comprises $320 for parts and the remainder for labour to relocate the antenna to another part of the roof away from the trees. During the hearing, the applicants stated that they were content with the current location of the antenna.

17. I am satisfied that the respondent had notice of the damage and while she has taken action to abate the damage it is not unreasonable for her to contribute a sum of $300 towards the repair of the antenna.

18. Although some pruning has been undertaken, further pruning is required. The Poplar (T4) is to be pruned to establish a minimum clearance of 1.5m above and around the antenna. Only the branches on the applicants’ side of the tree are to be removed; the arborist is not to remove any ‘compensatory’ branches from the respondent’s side of the tree.

19. The previous lopping of the Robinia (T3) has created a situation where the vigorous regrowth is weakly attached and is at risk of failure. This tree is to be removed to ground level and the stump treated to prevent regrowth.

20. The portion of the dead Paulownia (T6) overhanging the applicants’ property is to be removed to at least the point where the trunk bifurcates. Should the respondent which to do so, the entire tree can be removed.

21. The lowest branches of trees T8 and T9 (on the applicant’s side only) are to be pruned to achieve a clearance of at least 1.5 m above the guttering of the single storey section at the rear of the applicants’ dwelling.

22. All pruning is to be at the respondent’s expense.

23. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence.

24. As a consequence, the orders of the Court are:

1. The application is granted in part.

2. Within 30 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to carry out the pruning and removal works in [18] – [21] of this judgment.

3. The pruning work is to be carried out in accordance with AS4373: 2007 Pruning of Amenity Trees. All tree work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or equivalent.

4. The applicants are to provide all reasonable access on reasonable notice for the purpose of quoting and the safe and efficient carrying out of the works in order 2.

5. The applicants are to engage and pay for a specialist to repair the antenna. No section of the antenna is to be any higher than its current position. The work is to be carried out after the pruning of the trees and within 60 days of the date of these orders otherwise order 6 lapses.

6. The respondent is to reimburse the applicants the sum of $300 on receipt of a tax invoice for the completed works in order 5.

_____________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 27 January 2016