Aaron v Haynes

[2007] NSWLEC 294

Land and Environment Court

of New South Wales

CITATION:

Aaron v Haynes [2007] NSWLEC 294

PARTIES:

APPLICANT
Louise Aaron

RESPONDENT
John & Janys Haynes

INTERVENOR
Blue Mountains City Council

FILE NUMBER(S):

20136 of 2007

CORAM:

Moore C - Hussey C - Fakes AC

KEY ISSUES:

Trees (Neighbours) - Neighbour Application :-
Applicability of Act to Living Bushland Conservation Zone under the Blue Mountains Local Environmental Plan

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006
Blue Mountains Local Environmental Plan

CASES CITED:

Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

25 May 2007

EX TEMPORE JUDGMENT DATE:

25 May 2007

LEGAL REPRESENTATIVES:

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
HUSSEY C
FAKES AC

25 May 2007

07/20136 Louise Aaron v John & Janys Haynes

JUDGMENT

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

1. COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act2006 (the Act).

2. The application has been lodged by Ms Louise Aaron, the owner and occupant of 98 Evans Lookout Road, Blackheath.

3. The application concerns a mature Pine tree (Pinus radiata) located on the adjacent property immediately to the south at 96 Evans Lookout Road. This property is owned by Mr and Mrs Haynes.

4. The application is put on two bases with the first relating to damage to Ms Aaron’s property and the second to risk of injury to Ms Aaron. There is no claim made for compensation as part of the application.

5. These two matters raise two of tests provided for in s 10(2) of the Act.

6. The claim for damage to Ms Aaron's property is for both past and continuing damage that requires to be responded to, in her view.

7. She tells the Court that she has been required to replace a drainage pipe that became impassably blocked as a consequence of filling with pine needles.

8. We have had the opportunity, during the course of the site view, to see the extent of the drop of needles from the pine tree onto her roof and falling into the gutters and into the valleys of her roof.

9. It is important to note, as a preliminary point, that the properties are located in a Living Bushland Conservation Zone to pursuant to the Blue Mountains Local Environmental Plan. Consistent with the provisions s 4(1)(a) of the Act, for the Court have any jurisdiction, we must be satisfied that, in broad terms, this zoning is one which is analogous to a residential zone.

10. We have carefully observed the nature of the settlement pattern in the vicinity of the two properties which are involved in this application and the streetscape of the road in which they are located.

11. we are satisfied that the zoning, although not using the word residential, is, in fact, a zone of a residential character and thus, in that regard, the Court does have jurisdiction to deal with this application.

12. We turn to consider question of risk of injury to Ms Aaron.

13. We have each examined the tree using a pair of binoculars.

14. We are satisfied that the tree is a mature specimen of Pinus radiata in good health and condition and, clearly, on the evidence from the respondents and from its size and girth, predates the houses of either the applicant or the owner of the tree.

15. We paid particular attention, during our examinations, to the branches which are located over the applicant's house.

16. We have examined the attachment of each of those to the relevant one of the tree’s trunks – the tree having two substantial main trunks. We are satisfied that there is no sign of either any present risk of failure nor is there any indication of any likelihood of failure at all in the foreseeable future.

17. We are therefore satisfied that there is no risk of injury to people – as required by section 10(2)(b) of the Act – to invoke the jurisdiction of the Court to consider what orders, if any, might be made in exercising the Court's discretion under s 9 of the Act.

18. We therefore turn to the matter of the needles and other dirt and detritus (including small elements of deadwood) being dropped from the tree.

19. In Barker v Kyriakides [2007] NSWLEC 292, we set out the relevant tree dispute principle which concerns urban trees and ordinary maintenance.

20. This tree dispute principle is in the following terms:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

21. We are satisfied that the principle in Barker should be applied in these circumstances.

22. We have each climbed a ladder to examine the extent of needle fall into the gutters and we have looked at the surrounds of Ms Aaron's house and those of the respondents. Having considered the degree of fall of needles in the vicinity, it is obvious that that there is no extraordinary circumstance attaching in this case to cause the Court to depart from the principle discussed. We are not satisfied any of the tests pursuant to section 10(2)(a) are met. We have therefore concluded that there is no basis upon which the Court would intervene. The consequence is that the application is dismissed.

Commissioner of the Court Commissioner of the Court Acting Commissioner of the Court