Land and Environment Court New South Wales

• Medium Neutral Citation: Bentley v Hinchen & anor [2014] NSWLEC 1209
• Hearing dates: 14 October 2014
• Decision date: 14 October 2014
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is upheld in part. See orders at paragraph 10

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; change in circumstances since earlier application; application upheld in part; orders for pruning and compensation
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Bentley v Hinchen [2008] NSWLEC 1348
• Category: Principal judgment
• Parties: Carol Bentley (Applicant); David Hinchen and Lynette Hinchen (Respondents)
• Representation: Carol Bentley, litigant in person (Applicant); David Hinchen and Lynette Hinchen, litigants in person (Respondents)
• File Number(s): 20462 of 2014

Judgment

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

Background

1 A tall Flooded Gum (Eucalyptus grandis) grows in the Lindfield property of Mr and Mrs Hinchen ("the respondents"), close to their common boundary with Ms Bentley's neighbouring property. Ms Bentley ("the applicant") has lived here for many years, during which time she has become concerned about branches falling from the tree onto her property. Ms Bentley applied to the Court in 2008 seeking orders for the tree's removal and compensation for repairing damage caused by the tree. Pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006, the Court ordered the Hinchens to pay Ms Bentley some compensation for repairing damage, and ordered that the Hinchens have deadwood regularly removed from the tree at intervals of no more than 12 months (see Bentley v Hinchen [2008] NSWLEC 1348).

2 Ms Bentley says more branches have fallen from the tree since then and has again applied to the Court for orders for the tree's removal and for compensation of further damage caused by the tree. She says paving in her garden between the tree and her dwelling has been lifted again by tree roots, creating an uneven surface. She says the timber paling fence on the boundary has been pushed out of alignment by growth of the tree's stem. She has retained many of the fallen branches. Most are dead but she says one live limb has fallen. A dead limb fell onto her roof, breaking tiles and puncturing her ceiling. Another dead limb fell after the application was made, on the Friday before the onsite hearing. Ms Bentley says she has tried to resolve the issue by ringing the Hinchens "a couple of times".

3 Ms Bentley contends she has never been notified of the pruning works and is unsure if the Hinchens have pruned the tree as often as they are required to by the Court's earlier orders.

4 The Hinchens say they have not been contacted by Ms Bentley or notified about branches falling, other than on one instance in 2012 when they received a phone call, followed by a letter. They undertook pruning after that and responded in writing to inform Ms Bentley of the works carried out. They feel they have been ambushed by these proceedings as they have been unaware that limbs have been falling. They say that, had they been aware of fallen branches, they would have had the tree pruned even more promptly. They contend that they have had the tree pruned at intervals that satisfy the previous orders. Although they have no record of the timing of that pruning for several years, they recall the dates when the tree was pruned during the last couple of years.

5 The Hinchens cite their prompt response to Ms Bentley's request for a boundary fence as an example of their willingness to resolve neighbourly issues in a cooperative fashion when they are made aware of them.

6 The Hinchens contend that Ms Bentley has contributed to the alignment of the fence by dropping twigs and debris over the fence into the small gap between the fence and the tree. They say if the paving had been properly repaired in the first instance it might not have suffered further damage.

Findings

7 I accept that there has been a change in circumstances since the previous hearing: there have been further occurrences of limbs falling onto Ms Bentley's property. This allows Ms Bentley to make this new application and allows the Court to make orders if I find the Court's jurisdiction is engaged. Because a branch has fallen and punctured Ms Bentley's ceiling, the jurisdictional test at s10(2)(a) is satisfied and orders can be made. The effects of root and stem growth on paving and the fence also satisfy that jurisdictional test.

8 Although there may be new circumstances, the overall condition of the tree and its surrounding circumstances appear not to have changed significantly since the Court's earlier decision. The tree appears healthy and structurally sound. I see no reason for it to be removed. Several live limbs have grown significantly over Ms Bentley's property and are now somewhat overextended. There is some risk of these limbs failing in the near future with further growth. Pruning to remove overextended limbs above Ms Bentley's property would be appropriate. It is also appropriate to continue the regime of deadwood removal.

9 For the above reasons I will make orders to maintain the regime of deadwood removal previously ordered by the Court, adding some clarification of the requirement for the Hinchens to notify Ms Bentley of each pruning event. Due to the extension growth of limbs above Ms Bentley's property I will also order pruning of several live limbs. The compensation amounts sought by Ms Bentley for repairing paving and realigning a section of the fence seem reasonable. In fact if she does these works it is likely to cost more, but she has expressed her willingness to cover any amount beyond this. Although I will not make orders requiring Ms Bentley to give the Hinchens notice of any further branch fall, I note that it is entirely in her favour to notify them in a timely manner should any branches fall from the tree into her property in future.

Orders

10 The orders of the Court are:

(1) The application is upheld in part.

(2) By 14 December 2014 the respondents are to engage and pay for a suitably qualified arborist (minimum AQF Level 3), with all appropriate insurances, to remove the four longest limbs extending above Ms Bentley's property, pruning them back to branch collars at their points of attachment. The works are to be done in accordance with the guidelines of AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(3) The respondents are to undertake regular deadwood removal in accordance with the Court's previous orders; i.e., all deadwood 30mm diameter and greater is to be removed from the tree's crown at intervals of no more than 12 months. Pruning is to be done by suitably suitably qualified arborists (minimum AQF Level 3), with all appropriate insurances, in accordance with the guidelines of AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) On each occurrence of the pruning ordered above the respondents are to give the applicant at least 14 days' notice in writing of the works.

(5) The applicant is to allow any access required for the pruning ordered above during reasonable hours.

(6) Within 30 days of receiving a copy of a paid invoice for repair to the applicant's pavers, the respondents are to pay the applicant the sum of $200.

(7) Within 30 days of receiving a copy of a paid invoice for realignment of the boundary fence near the tree, the respondents are to pay the applicant the sum of $200.

(8) If within 6 months of the date of these orders the respondents do not receive either of the invoice copies described in the preceding two orders, those orders lapse.

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D Galwey

Acting Commissioner of the Court

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Decision last updated: 14 October 2014