Bentley v Hinchen & anor [2014] NSWLEC 1209

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 1A 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). 2Ms 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". 3Ms 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. 4The 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. 5The 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. 6The 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.