Land and Environment Court of New South Wales CITATION : Lentfer v Hopkins [2008] NSWLEC 1452 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Noelene and Dennis Lentfer PARTIES : RESPONDENT Mark Hopkins FILE NUMBER(S) : 20749 of 2008 CORAM: Thyer AC KEY ISSUES: Trees (Neighbours) :- Damage to boundary wall, Damage caused by tree which was removed before date of application LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 Robson v Leischke [2008] NSWLEC 152 CASES CITED: Yang v Scerri [2007]NSWLEC 592 Nair v Edwards [2006] NSWSC 1310 DATES OF HEARING: 22/10/2008 EX TEMPORE JUDGMENT DATE : 22 October 2008 APPLICANT Noelene and Dennis Lentfer, Litigants in Person LEGAL REPRESENTATIVES: RESPONDENT Mark Hopkins, Litigant in Person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 22 October 2008 20749 of 2008 Noelene and Dennis Lentfer v Mark Hopkins JUDGMENT The extemporaneous decision was given on 22 October 2008. The judgment reflects the findings given on-site and the background documentation referred to during the hearing. 1 ACTING COMMISSIONER: Noelene and Dennis Lentfer have lived at 22 Allan Street, New Lambton for 30 years. The adjoining property to the east, 20 Allan Street, New Lambton which is on slightly higher ground, has been owned by Mark Hopkins for 24 years. Mr Hopkins does not live at the property; he rents it out through a managing agent. 2 The dividing fence between the Lentfers' and Mr Hopkins' backyards is a low masonry wall, topped at some time in the past by neat, short palings, making a total height of about 1.5 m. The wall is now cracked and leaning slightly into the Lentfers' property, most of the palings are missing, and the remaining timber rails are weathered and decayed. 3 There are three large shrubs growing in a raised garden bed on Mr Hopkins' side of the wall. The Lentfers seek orders for removal of these shrubs and the garden so that cracking and damage to the wall will cease. Mr Hopkins asserts that the lean to the wall that has developed over many years could also be caused by the pressure of soil and water. 4 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 the 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? 5 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? 6 Further, before determining an application, the Court is to also consider the matters in s 12 of the Tree Act. The trees 7 The trees in this case are three large shrubs. I find that they meet the definition of tree in s 3 of the Act as each is a 'woody perennial plant'. Further, each shrub is self-supporting and about 2.5 - 3 m tall. 8 The three trees are located in a line about 0.3 m from the boundary wall, about 1.5 m apart, about mid-way between the rear of the houses and the back fence. 9 Mr Hopkins states that he did not plant the trees; they and the garden bed were on the property when he purchased 24 years ago. 10 The tree nearest the house is a Bottlebrush (Callistemon sp) about 2.5 m tall with trunk diameter of about 0.15 m. It has an interesting, contorted shape, and appears to be healthy. The middle tree is a Mock-Orange (Murraya paniculata) about 3 m tall with trunk diameter of about 0.3 m. It is a dense, healthy shrub. The far tree is a Euonymus japonicus, about 3 m tall with trunk diameter of about 0.3 m. It is senescent, in poor condition with borer damage in the lower stems. 11 The parties agree that a Cumquat tree (Fortunella/Citrus japonica) was growing close to the boundary wall, on Mr Hopkins' property near the back of the house. That tree was removed some time ago, prior to the lodging of this application. Damage 12 The timber part of the dividing fence has disintegrated, but that is not blamed on the trees and does not form part of this application. 13 The cement rendered, masonry boundary wall is about 0.6 m high and 0.15 m wide. It has cracked more or less vertically in four locations, two of those near the trees. At those two cracks the southern section of wall has moved 10 -15 mm towards the Lentfers' property at the top of the wall. The greatest movement, near the Bottlebrush tree, is to the section that is not beside any trees but was near the Cumquat tree. A view along the line of the wall indicates that there is variable bulging of the wall towards the Lentfers' property, and that the worst damage is in the area where the Cumquat tree was growing. Findings 14 I find that on the balance of probability, trees on Mr Hopkins' property beside the boundary wall were the major cause of damage to that wall. I find it likely that the pressure of soil and water had only a minor part in that damage as the height of the garden bed is less than 0.6 m, the garden bed is narrow, and the difference in height between the two properties is slight. 15 Further, I find that the Cumquat tree was the cause of most damage to the wall, on the basis that the greatest bulge of the wall, and the sections of wall that have cracked and moved out most, are near the location of the Cumquat tree. I cannot consider the damage caused by the Cumquat tree as reason for removal of the other three trees because those trees did not cause the damage, and because the Cumquat tree was not a tree situated on the land at the time the application was made, see s 4(3) and s 7 of the Act and Robson v Leischke [2008] NSWLEC 152 where Preston CJ discussed such matters at paragraph 144. 16 I find that the three trees have caused some damage to the boundary wall, and as they are all close to the wall, I find that on the balance of probability, they have all contributed to that damage. On that basis I find that each tree meets the first test in s 10(2)(a) of the Act as they have caused damage to the boundary wall that the parties agree is common property. 17 The Lentfers say that the wall has moved gradually, a matter of millimetres, over the year or so since they first tried to bring the matter to Mr Hopkins attention. On that basis, I find that the damage is still occurring and is likely to occur in the near future, and thus each tree meets the second and third tests in s 10(2)(a) of the Act. Considerations 18 Under s 12 (d) of the Act, I note that the Murraya bush has a dense twiggy form and is likely to provide shelter for small birds. 19 Under s 12 (e) of the Act, I note that the trees provide some screening between the two backyards. I also note the Lentfers opinion that a replacement fence would better satisfy their wishes for screening and privacy in their backyard. 20 Under s 12 (j) of the Act, I note that both parties intend to leave the wall in its present damaged condition even if the trees are removed. Also,I consider that very little if any further damage is likely in the near future. In Yang v Scerri [2007]NSWLEC 592, the Court set out, for future consideration, a rule of thumb as to what might constitute the near future for the purposes of s 10(2)(a) of the Act. In that case, twelve months was adopted as an appropriate period. I also note that twelve months is a more generous period of time than was discussed in Nair v Edwards [2006] NSWSC 1310 (a tree nuisance case in the Supreme Court) where Windeyer J held that an appropriate period of time for future damage might be as short as six months. I find no reason to depart from those timeframes in this case, and on that basis find little reason to order removal of the trees. Agreement of the parties 21 At the hearing Mr Hopkins offered, and an agreement was made between the parties that Mr Hopkins would remove the three trees at his cost by 31 Dec 2008, and that he would grind or poison the stumps to stop any future growth of the roots of the trees damaging the wall. 22 On the making of that agreement, the Lentfers advised that they no longer seek Orders for removal of the trees. Conclusion 23 Noting the agreement of the parties for removal of the trees, and that the applicant no longer seeks Orders, I intend to dismiss the application. Orders 24 The Orders of the Court are that the application is dismissed. ___________________ 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 http://www.lawlink.nsw.gov.au/lec/ 21/11/2008 - amendment to catchwords - Paragraph(s) coversheet 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.