Ashton v Constantinidis

[2008] NSWLEC 25

Land and Environment Court

of New South Wales

CITATION:

Ashton v Constantinidis [2008] NSWLEC 25

PARTIES:

APPLICANT
Brooke and Matthew Ashton

RESPONDENT
Spira Constantinidis

FILE NUMBER(S):

21070 of 2007

CORAM:

Hoffman C - Fakes AC

KEY ISSUES:

Trees (Neighbours) - Neighbour Application :- Removal and pruning of a tree, retaining wall, damage to property

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

15/01/2008

EX TEMPORE JUDGMENT DATE:

15 January 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr M. and Mrs B. Ashton, litigants in person

RESPONDENT
Mrs S. Constantinidis, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C
Fakes AC

15 January 2008

21070 of 2007 Brooke and Matthew Ashton v Spira Constantinidis

JUDGMENT

1 This is Appeal No. 21070 of 2007 between Brooke and Matthew Ashton and Spira Constantinidis in regard to a Eucalyptus Scoparia a tree located about half way down the common boundary of Nos. 16 and 18 Spring Street, Pagewood.

2 Mrs Constantinidis has owned and lived in No. 18 for the past 30 years. The Ashton’s bought No. 16 about 5 years ago and whilst living there have undertaken some renovations but in recent times have rented out with the intention of eventually moving back in.

3 The subject tree appears to be wholly on the respondent’s property No. 18. But it is close enough to the boundary for roots and some branches to overhang No. 16. The applicants are concerned about previous opinions from council’s staff that the tree has fungal rot and may fall over. The applicants are concerned that the tree may fall onto their property especially one branch that overhangs their house.

4 There is a change in ground level of about 600 mm down from No. 18 to No. 16. The rear yard of No. 16 for part of its side boundary has a brick enclosed and raised planter box against the common boundary with No. 18. Adjacent to the tree there is no planter box and we saw a piece of sheet metal held up by two star pickets retaining the soil against the tree roots. There were two tree roots visible both about 75 mm diameter protruding below the sheet metal into the ground in No. 16.

5 The applicants said there used to be a masonry retaining wall along the boundary adjoining the tree but it had been destroyed by the roots. There was some evidence of some bricks laying around but no evidence of foundations of any retaining wall. This indicated to us that if there was some masonry erected adjacent to the tree it had never been constructed properly as a retaining wall.

6 The tree roots had obviously been there much longer than four or five years. The tree itself according to the respondents is in excess of 30 years old. The applicants wish to build a new retaining wall but were told by their fencing contractor this would not be possible due to the roots. At the hearing the applicant said a pine log retaining wall is intended. Using that form of construction it could easily be built over the roots without damage to them. The tree is at a mature stage and is unlikely to grow significantly in the future and therefore is unlikely to ever damage a pine log retaining wall.

7 The applicant alleged since buying the house, old terracotta sewer lines along the side boundary had to be replaced due to tree root damage. The soil is sand and it is not unusual for old terracotta pipes to move and allow the entry of roots. Also the terracotta pipes usually have a limited service life due to their nature. The applicant has not claimed costs for the sewer work previously carried out. We presume the new pipes are in plastic that will not allow roots to enter.

8 A further complication is that the location of the fence is said by the respondent to be about 700 mm within their own property and that the actual boundary between Nos. 16 and 18 is 700 mm into the applicants land. This issue is not resolvable at this hearing. If the respondent is correct the roots of the tree and part of the brick enclosed garden box and part of the side setback of No. 16 actually belongs to No. 18. We do not see this dispute over the boundary as effecting our decision in regard to the tree.

9 Following close inspection of the tree itself by Acting Commissioner Fakes it is noted that the natural form of the Eucalyptus Scoparia is to have loose bark on the trunk and branches that could give a non-arborist person an impression of poor health. There is also an amount of deadwood in the tree including a leader branch that hangs above No. 18 the respondents land. This large leader branch is dead, it has a small fungal fruiting body on one spot of the deadwood that indicates some decay is present in that branch but not in the rest of the tree.

10 There is no evidence of decay in the rest of the tree and it appears quite sound and in no immediate danger of falling over. We are satisfied that the dead branch activates clause 9(2)(d) of the Trees (Disputes between Neighbours) Act 2006 and that the dead branch should be removed and the other small deadwood in the canopy be removed. We cannot form the opinion that removal of the tree is warranted.

11 Therefore the Orders of the Court are:

1. The application is upheld in part.
2. At No. 18 Spring street, Pagewood the large dead leader branch including smaller deadwood down to 30 mm diameter in the entire canopy of the Eucalyptus Scoparia tree shall be removed by an arborist of AQF level 3 qualifications and with appropriate insurance. The work is to be carried to the standard of AS4373.2007 within 60 days of this order.
3. The work is to be paid for by the respondent.

___________________

K G Hoffman
Commissioner of the Court

___________________

J Fakes
Acting Commissioner of the Court
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