Shields v Wiblin

CASES CITED: Black v Johnson (No 2) [2007] NSWLEC 513 Barker v Kyriakides [2007] NSWLEC 292

APPLICANT Eric Shields, litigant in person LEGAL REPRESENTATIVES:

RESPONDENT Jim Wiblin, litigant in person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

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

1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Eric Shields of 190 Joseph Banks Drive Kings Langley and the owner of a tree located at 192 Joseph Banks Drive. The owner of that property is Mr Jim Wiblin.

2 Apart from the applicant and the respondent, also present at the on-site hearing were Mrs Dareena Wiblin, the respondent's wife, and Mr Patrick Kelly, an arborist invited to attend by the applicant.

3 The tree is a mature Eucalypt reported by the respondent to be a probable remnant of the original vegetation as it was well established when he purchased the block of land in 1977.

4 The applicant is seeking the removal of the tree as he contends that since moving into the property about 20 years ago leaves from the respondent's tree have blocked gutters and downpipes requiring them to be replaced. Due to the blockages, he also contends that water overflowing from the gutter damaged a gyprock ceiling. He is seeking compensation of a sum of $4,341.70 for the cost of replacing the guttering and downpipe in 2004 and for quarterly cleaning of those, since then, by a plumber. He is also seeking $2000.00 for the replacement and painting of the gyprock ceiling. The applicant is also seeking $200.00 as compensation for a damaged section of wooden lattice that he alleges was damaged by a fallen branch.

5 The other reason the applicant is seeking the removal of the tree is that he is concerned that a branch may fall from the tree and injure someone. In supporting this concern, Mr Shields included many press clippings from around Australia relating to injuries caused by trees.

6 With respect to the inclusion of material relating to other trees, s4 of the Act clearly sets out the trees to which the Act applies. S12 of the Act sets out the range of matters that must be considered by the Court as they relate to the trees to which the Act applies. In essence, these relate to the immediate environment of the tree and the particular circumstances of each case. Hence the inclusion of material about other trees in other circumstances is rarely helpful to the Court.

7 The tree was viewed from both properties and binoculars were used to assess the upper sections of the canopy. The tree is approximately 18-20 m tall and is located at the rear of the respondent's property within one metre of the side boundary fence. It has a healthy canopy and a small percentage of deadwood that is consistent with a Eucalypt of its age and size.

8 The tree appears to have been lopped to the fence line some years ago. This observation was confirmed by the respondent who stated that the applicant had engaged someone to carry out those works in 2001. The applicant vehemently denied this so the matter of who lopped the trees was unresolved. However, the evidence in the canopy supports work of this nature having been carried out and the time frame suggested by the respondent seems reasonable. No other work of any significance appears to have been undertaken in any other part of the tree.

9 Some of the lopped branches have died back and are dead and others have small diameter epicormic growth. One large first order branch has 3-4 shoots of several metres in length arising from the lopped stub. Despite their origin, they appear to be reasonably well attached. These branches overhang part of the applicant's property.

10 There was photographic evidence of a branch that had fallen onto the lattice fence. This occurred in 2008 and there was debate between the applicant and the respondent as to the condition of the lattice prior to the impact of the branch. The lattice is approximately 10 years old, of treated pine, and has a well-established Bougainvillea growing through it.

11 In the twenty years or so that that the applicant has lived at 190 Joseph Banks Drive, this is the only actual damage that has been caused by the tree.

12 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or injury to persons. In Yang v Scerri [2007] NSWLEC 592 (31 August 2007) (Brown C, Hoffman C, Fakes AC), a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

13 The Court must also consider matters under s12. The relevant clauses in this case are: (a) The tree is wholly located on the respondent's property. (d) The tree is likely to be a remnant of the original vegetation that is now fragmented in this part of Kings Langley. As such it is likely to make a contribution to the local ecosystem and to biodiversity. There are signs of use by cockatoos. (e) The tree makes a contribution to the scenic value of the land on which it is located and to the immediate locality. (f) This is one of the few remaining trees along the ridgeline and is thus visible to the wider community. It provides some visual connectivity between other remnant trees and contributes to the landscape character of the area. (h)&(i) Anything other than the tree that may have contributed to the damage. o The lattice is at least 10 years old and has a heavy sprawling plant growing through it. o The guttering that was replaced was approximately 25 years old and could reasonably be expected to need replacement. o An unknown party had the tree lopped to the fence line. This work is not in accordance with AS4373 Pruning of Amenity Trees and is likely to be the main source of the small diameter branches that have fallen onto the fence. (j) The tree was present and of a substantial size when the applicant purchased the property. He has installed various outdoor entertainment fixtures, such as a barbecue, under the canopy of the tree. The relevance of this fact is given in Black v Johnson (No 2) [2007] NSWLEC 513 (30 July 2007) (Moore C, Thyer AC) in the Tree Disputes Principle at paragraph 15.

14 Therefore in considering the application to remove the tree and for payment of compensation, the following points are made with respect to the tests that arise pursuant to s10(2) of the Act. 15 With respect to the guttering, downpipes and issues of leaf drop, the Court, in Barker v Kyriakides [2007] NSWLEC 292 (24 May 2007) (Moore C, Hussey, Fakes AC) published a tree dispute principle "that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree". This applies in this case. It is expected that some level of regular external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide. In this case, the age of the guttering was such that it would normally have needed replacing. Therefore the application for compensation for the replacement of the guttering and downpipes is dismissed.

16 With respect to the alleged water damage to the ceiling, there was no notice of this given to the respondent until this application was made. Therefore the application for compensation for the replacement and painting of the ceiling is dismissed.

17 With respect to the lattice, there is photographic evidence of a branch on the lattice so it is reasonable to assume that some damage was likely to be the result of the fallen branch. However given the age of the lattice, the presence of a vigorous Bougainvillea and the uncertainty of the condition of the lattice prior to the impact of the branch, the full amount of $200 sought by the applicant is refused. The application for some compensation is upheld in part and the orders are given in paragraph 19 of this judgement.

18 With respect to the risk of the tree causing injury, the inspection showed no obvious defects that would cause this in the near future (see paragraph 12). Mr Kelly suggested that decay was present in the canopy but I saw no evidence of this.

19 As the majority of the elements of s10(2) of the Act have not been satisfied, the orders of the Court are as follows: 1. The application to remove the tree is dismissed. 2. The application for some compensation for damage to the guttering, downpipes and ceiling is dismissed. 3. The application for compensation for the lattice is upheld in part. The respondent is to pay the applicant the sum of $50.00 towards the replacement of the damaged panel of lattice. This is payable within 21 days of the receipt of a tax invoice for the completed works. If the applicant wishes to proceed, the applicant is to arrange for these works to be carried out within 30 days of the date of these orders. If the works are not carried out in this time, the order lapses.

20 This judgment records an agreement made between the parties at the on-site hearing but is not part of the orders. It was agreed that if the applicant sought permission from the local council to prune overhanging branches the respondent would agree to this and would allow access for this to happen. If pruning was to be carried out, it must be done in accordance with AS4373:2007 and at the applicant's expense. This statement makes no assumptions as to whether the Council will give permission or not.

      J Fakes
      Acting Commissioner of the Court

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