Land and Environment Court of New South Wales CITATION : Bentley v Hinchen [2008] NSWLEC 1348 APPLICANT Carol Bentley PARTIES : RESPONDENTS David and Lynette Hinchen FILE NUMBER(S) : 20585 of 2008 CORAM: Moore C - Taylor C - Fakes AC KEY ISSUES: Trees (Neighbours) :- LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 15 August 2008 EX TEMPORE JUDGMENT DATE : 15 August 2008 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENTS In person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C TAYLOR C FAKES AC 15 August 2008 08/20585 Carol Bentley v David and Lynette Hinchen JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 COMMISSIONERS : A large Flooded Gum ( eucalyptus grandis ) grows on 9B Gladstone Parade, Lindfield, very close to its eastern boundary with 2 Drovers Way. Ms Bentley is the owner of 2 Drovers Way. She has made an application pursuant to the Trees (Disputes Between Neighbours) Act 2006 seeking removal of the tree and compensation for damage as has been occasioned to her roof and to a retaining wall on her property, adjacent to the base of the tree. 2 The Hinchens are the owners of the tree. They oppose the making of the orders sought. 3 We have carefully examined the tree for signs of structural weakness or likely catastrophic failure causes. We are satisfied that this is unlikely to occur despite the fact that a substantial portion of the tree's crown was removed at some time in the past. The growth which as occurred since that time appears to be structurally sound and not likely to cause damage in the near future to Ms Bentley's property 4 There is, however, a significant degree of deadwood located in various parts of the tree's canopy – a topic to which we will return. 5 We have also had the opportunity to inspect the retaining wall and to inspect the damage caused by water to the ceiling of Ms Bentley's property. The Hinchens purchased the adjacent property in the late 1990s. We have been provided with correspondence from Ms Bentley to the Hinchens from 2000 onwards drawing their attention to her concerns about the tree. together with a copy of a 1999 letter written to the previous owner of the tree (a copy of which was provided to the Hinchens at the time of their purchase of their property). 6 We have carefully looked at the damage to the retaining wall and considered the photographic evidence that has been provided concerning damage to the roof. We are satisfied, as a matter of causation, that damage to the retaining wall and to the paving adjacent to it has been caused, at least to some extent, by the roots of tree. This satisfies the first of the jurisdictional tests under s 10(2)(a) of the Act. 7 We are also satisfied, on the basis of the photographic evidence of damage to the roof tiles, that that damage was caused by the tree. We are therefore satisfied we have jurisdiction to entertain the application. We proceed, therefore, to consider what, as a matter of discretion, we ought order in response. 8 It is convenient to deal, first, with the question of damage to the roof. We are satisfied that the Hinchens have been notice of Ms Bentley's concerns about the tree since at least 2000 and of the probability of damage occurring to her roof and wall. We are satisfied that this damage was caused as a consequence of the tree and are therefore satisfied that there has been a sufficient period of time within which they have had notice of this matter and an opportunity to address it for us to order that the costs of rectification of this damage be met by them. 9 In this regard, Ms Bentley has a quote for $2915 (including GST) for this work. We propose to order that that amount be paid to Ms Bentley within 60 days of her providing the Hinchens with a receipted invoiced for the completion of the work covered by that invoice. 10 The question of the retaining wall as a matter of some greater difficulty. We have two quotations - one of which is based on the replacement of the retaining wall with new materials (it is a quotation of the order of $7,000) and the other is one which recycles the materials at a total cost (including GST) of $2200. Ms Bentley seeks reimbursement of the lower of the quotations. 11 We have looked at the retaining wall and we are satisfied that there are two significant matters that we should have regard to concerning its present condition. The first is that we are satisfied that a deal of the bowing to the retaining wall has been caused by pressure from the roots of the tree or soil settlement arising from the growth of the tree. To that extent, we are satisfied that some order for compensation in this regard should be made for the reconstruction of the wall. 12 However, we have also had regard to the construction methodology used in the retaining wall. In the first instance, the wall has been constructed, we are satisfied, in a fashion which does not represent sound practice as to the depth the retaining posts are embedded in the ground and the orientation used in laying the sleepers for the retaining structure. Further, there is no evidence that there is any appropriate drainage provided behind the retaining wall. 13 As a consequence of those mitigating matters on the potential liability of the Hinchens, we are satisfied that it would be inappropriate to award the entirety of the amount claimed. Doing as best we are able to, we consider that the Hinchens should reimburse Ms Bentley with the sum of $1100, being 50% of the cost of the lower of the quotations, on a similar basis - that is within 60 days of the provision to the Hinchens of a receipted invoice for the carrying out of the work. 14 We are satisfied if those works are carried out after the removal of deadwood from the tree that it would not be necessary to order the removal of the tree. 15 We are satisfied that, from an examination of the canopy of the tree that it is likely, over time, the tree will continue to develop deadwood in its canopy. 16 We therefore propose to order that the Hinchens are to have removed all deadwood of 30 mm or greater in diameter at the point of attachment within 90 days of the date of the Court's orders. That work is to be carried out by an AQF level 3 arborist with appropriate insurances as required by the WorkCover Authority. It is to be undertaken in accordance with AS 4373 of 2007. To the extent that access to Ms Bentley's airspace is required for that purpose, such access is to be provided by her (on reasonable notice, at a reasonable hour of the day and with her having the opportunity to supervise such access being undertaken). 17 As we consider that there would be a need, on a prudent management basis, to undertake continuous deadwood removal to ensure that the present circumstances do not arise again and the likelihood of future damage to Ms Bentley's roof is prevented, to the extent it is capable of being prevented, we propose to order that the deadwood removal be repeated at 12 monthly intervals on an ongoing basis. Tim Moore Commissioner of the Court Mark Taylor Commissioner of the Court Judy Fakes Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.