Whyte v Jourdant

[2009] NSWLEC 1030

Land and Environment Court

of New South Wales

CITATION:

Whyte v Jourdant & Anor [2009] NSWLEC 1030

PARTIES:

APPLICANT
Colleen Whyte

RESPONDENT
Grant Jourdant and Catherine Jourdant

FILE NUMBER(S):

21058 of 2008

CORAM:

Thyer AC

KEY ISSUES:

TREES (NEIGHBOURS) :- Flood Gum to be removed and dead wood to be prunded from two Tallow-wood trees.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

03/02/2009

EX TEMPORE JUDGMENT DATE:

3 February 2009

LEGAL REPRESENTATIVES:

APPLICANT
Ms C. Whyte, litigant in person

RESPONDENT
Mr G. Jourdant and Mrs C. Jourdant, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

3 February 2009

21058 of 2008

Colleen Whyte v Grant Jourdant and Catherine Jourdant

JUDGMENT

The extemporaneous decision was given on 3 February 2009. This written judgment includes the findings given on-site, relevant observations and background information.

1 ACTING COMMISSIONER: Three eucalyptus trees are growing in the north-eastern corner of the backyard of 74 Taloumbi Road Coffs Harbour, each about 1 m from the common boundary of the adjoining property to the east. Mr and Mrs Jourdant are the owner occupiers of 74 Taloumbi Road. They have owned the property since 1995.

2 Mrs Whyte is the owner occupier of the adjoining property to the east. She bought her property in about 1986 soon after it was built. Her backyard had been excavated into the hillside, and a concrete block wall about 2 m high built to retain the backyard of 74 Taloumbi Road and the railway land, prior to her purchase. The three trees were growing at the time she moved in, the northern two were about three quarters their present size and the southern tree about half its present size.

3 Mrs Whyte’s clothes line in the backyard has been damaged more than once by falling branches. She moved the clothes line from directly under the trees to a location on the back of the house further from the trees but still had branches fall on it. Tiles on her roof have also been damaged by falling branches. She is concerned that damage to the retaining wall may have been caused by roots of the trees.

4 Mrs Whyte has fears for her safety in the backyard, and that a large branch might fall on the back of the house, injuring herself or her son. She also has concerns that the trees may be contributing to her allergies. She has had discussions with Mr and Mrs Jourdant about pruning or removal of the trees since at least 2003.

5 Mrs Whyte seeks orders for removal of the three trees to prevent injury to people and damage to property and to restore safe use of her courtyard and bedrooms and eliminate further prolonged stress and fear of injury. She also seeks compensation for some costs of repairs and other unspecified amounts.

6 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 by each tree before making an order regarding that tree. These tests are:

Has the tree caused damage to the applicant's property ?
Is the tree now causing damage to the applicant's property ?
Is the tree likely in the near future to cause damage to the applicant's property ?
Is the tree likely to cause injury to any person?

7 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

8 Further, before determining an application, the Court is to consider the matters in s 12 of the Act.

9 Mr and Mrs Jourdant provided a survey of their property at the hearing. The survey has a note that the concrete block retaining wall is 0.5 m beyond their boundary (within Mrs Whyte’s property) near the trees. From the survey I am also satisfied that all three trees are on the Jourdant’s property.

10 Mrs Whyte included in her application an arborist’s report by Mr Nigel Smith dated September 2008. That report described the trees as follows:

Southern tree (Tree 1) Tallow-wood about 9 m tall with trunk diameter of about 220 mm;
Centre tree (Tree 2) Flooded Gum about 20 m tall with trunk diameter of about 440 mm;
Northern tree (Tree 3) Tallow-wood about 17 m tall with trunk diameter of about 400 mm.
The report identifies that roots of the trees are damaging the retaining wall and recommends that all three trees be removed for that reason, at the earliest time possible.

The retaining wall

11 I observed that the retaining wall has bowed and cracked in panels that are not near the trees. The parties advised that no excavation has been carried out to see if there are tree roots pushing the wall. The parties contacted the arborist Mr Smith during the hearing, and informed me that he is not a structural engineer and has no similar qualifications that would lead me to put a high weighting on his comments regarding damage to the wall. Also, the parties advised that parts of the retaining wall that run behind other homes at 76 Taloumbi Road have been damaged by flooding or other causes. On that basis I do not have a comfortable level of satisfaction that the trees have damaged the wall.

The Flooded Gum

12 The arborist's report states that exudate is present on the western side of the trunk at 3 m and 5 m height, and decay is present at those points, and that Coccid moth exit holes are present on the trunk. Also that there is new growth dieback, and that the tree is heavily weighted over the yard of Mrs Whyte's unit, and that dead limbs exceeding 80 mm in diameter are in the canopy.

13 I accept the evidence of Mrs Whyte and her son Michael Whyte that all of the large dead branches that have fallen into the yard, and the large live branch that fell, are from this tree.

14 Falling branches from the Flooded Gum have caused damage to Mrs Whyte's clothesline, therefore it meets the first test in section 10 (2)(a) of the Act.

15 As Mrs Whyte has a small backyard that she needs and wishes to use, and the whole of the yard is within the area where branches have fallen in the past, I find that the Flooded Gum is likely to cause injury by falling branches, therefore it meets the test in section 10 (2)(b) of the Act.

16 As the Flooded Gum has decay in the trunk and is heavily weighted over Mrs Whyte’s property, I am not satisfied that pruning of the tree will remove the likelihood of injury. Therefore I will order removal of the Flooded Gum.

The two Tallowwood trees

17 No evidence has been provided that the two Tallow-wood trees have caused damage or are likely to cause damage in the near future. I observed that the two trees have a small amount of dead wood in their crowns, and I find that the dead wood in both trees is likely cause of injury. On that basis I will order pruning of dead wood from both of the trees.

Compensation

18 Mrs Whyte's compensation claim includes the cost of repairs to the roof which were carried out under the body corporate insurance, the cost of the arborist's report and an unspecified cost of stress and property devaluation. As the roof damage was repaired by insurance of the body corporate, it is not appropriate to compensate Mrs Whyte for that cost.

19 Commissioners do not have the power to order payment of legal costs, costs of expert reports, application fees to the court, and other expenses including personal expenses. Claims for these costs must be made by a notice of motion which is heard and determined by a Judge of the Land and Environment Court.

20 Mrs Whyte's claim for stress is not quantified so I am not able to consider it. I also note that she provided a report of skin allergy tests, in which no positive reaction was shown for Eucalyptus pollen, and Euclyptus was not listed elsewhere in the report.

21 The claim for property devaluation is also not quantified but this claim will evaporate when the orders are carried out.

Considerations

22 Under s 12 (d) of the Act, I note that the Tallow-wood trees are an Australian native species that occurs naturally in the local area, and would contribute to the local ecosystem. These two trees, along with others in the Jourdant’s backyard and nearby properties would provide a wildlife corridor and refuge.

23 Under s 12 (e) of the Act, I note that the trees contribute to the scenic value of the property, and the surrounding local area.

24 Under s 12 (f) of the Act, I note that the trees provides intrinsic value through oxygen production, carbon sequestration, cooling summer shade, and deflection and dispersal of strong winds.

Conclusion

25 The application is upheld in part and orders will be made for removal of the Flooded Gum and pruning of dead wood from the two Tallow-wood trees. Those orders do not prohibit additional pruning of the trees.

Orders

26 The application is upheld in part, and the Court makes the following Orders that apply to 74 Taloumbi Road, Coffs Harbour:

a. The Flooded Gum shall be removed to ground level and the stump poisoned by 30 April 2009 at the cost of Mr and Mrs Jourdant;
b. All dead wood larger than 20 mm in diameter shall be pruned from the two Tallow-wood trees by 30th of April 2009 at the cost of Mr and Mrs Jourdant;
c. The works in a. and b. shall be carried out by an AQF level 3 arborist with suitable insurances and the work shall be in accordance with Australian Standard AS 4373-2007 Pruning of Amenity Trees ;
d. Mrs Whyte shall grant access over her property for the contractor to carry out the work and for the tree to be dismantled on to her property and removed through her property. The work shall take place at reasonable times on reasonable notice and Mrs Whyte may supervise the work over her property.

___________________

Peter Thyer
Acting Commissioner of the Court

The formal orders are not included as part of this judgment but a copy may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at